NO REAL POSSIBILITY

North and ors v Dumfries and Galloway Council

Equal pay claimants who rely on a comparator at a different “establishment”, have to show that they would have similar terms and conditions if they were employed at the same place of work. The Court of Session has said in North and ors v Dumfries and Galloway Council that claimants do not also have to prove there was a “real possibility” that the comparator would do a similar job on broadly similar terms and conditions.

Basic facts

Over 200 classroom assistants, learning assistants and nursery nurses employed in local authority schools lodged equal pay claims with male manual workers also employed by the local authority as road workers, refuse collectors and leisure attendants based at depots around the local authority area and at a swimming pool.

The men were employed on terms and conditions known as the “Green Book” (White Book in England and Wales), whereas the women worked under the “Blue Book” (Purple Book in England and Wales). The women claimed that they were employed on work of equal value to their male comparators and that they were in the “same employment” as them, as required under section 1(6) of the Equal Pay Act 1970.

Tribunal and EAT decisions

Relying on British Coal Corporation v Smith, the tribunal confirmed that although the women and their comparators were employed at different establishments, the women could still be treated as being in the same employment if they could show that they shared common terms and conditions of employment.

It said that the test in British Coal allowed the women to make a hypothetical comparison between their terms and conditions and those that would apply to their comparators if they worked in the same place (even if the comparator would never be employed there in reality). It concluded that the men would be employed on broadly similar terms if they worked at the schools.

But the EAT ruled that the tribunal had misunderstood the test in British Coal. Although it was “open to a woman to show that common terms and conditions would apply if men were employed at her establishment”, this hypothesis had to be based on a “real possibility” that it could occur in the real world.

There also had to be a “real possibility” that her comparator would be employed at her “establishment” doing a job that was broadly similar to his current job, on terms and conditions that were also broadly similar to those under which he was currently employed.

Decision of Court of Session

The Court of Session (the Scottish equivalent of the Court of Appeal), however, has now said the EAT was wrong to introduce a test requiring claimants to show a “real possibility”.

This test did not exist in the Equal Pay Act, decided cases or the EC Treaty and could undermine the principle of equal pay articulated in article 141 of the EC Treaty (now Article 157). It represented an additional burden on equal pay claimants which was not envisaged in British Coal.

It did not follow, however, that the women’s claims would automatically succeed as they still had to show, under section 1(6) that they were employed under broadly the same terms as their chosen comparators in the “same employment”.

The women therefore had to show that, “no matter how unlikely the employment of the male comparator at the female claimant's establishment, the comparator would (or could be assumed to) remain on broadly the same terms and conditions of employment as other members of his class of employee ... the British Coal hypothesis would [then] be satisfied, and the claimant and the comparator would be shown to be "in the same employment".

However, the women could not show that a “transposed” male comparator would be employed on broadly the same terms as men working in the depots and their claims therefore failed.