Kells v Pilkington plc 2002 IRLR 693
In an equal pay claim, it does not matter if the differential in pay between the applicant and the comparator ended more than six years before the tribunal claim was lodged. Also, where an applicant relies on a continuing act of sex discrimination, an applicant does not have to prove the existence of a discriminatory policy, rule or practice. Instead the Tribunal is entitled to draw an inference that such a policy, rule or practice existed. So holds the Employment Appeal Tribunal in Kells v Pilkington plc.
Ms Kells was employed by the company from 1972 until August 1999. She alleged that she was performing work of equal value to two male comparators from 1989 to 1991 and then from 1990 to 1993. She also brought a claim for sex discrimination for the refusal to re-evaluate her job and for being given a worse workload following her return to work part-time after maternity leave.
The Employment Tribunal struck out her claim for equal pay. After recent challenges in the European Court of Justice, the two year limit on arrears of back-pay contained in section 2(5) of the Equal Pay Act has been extended to six years. The Employment Tribunal found that this meant that Ms Kells could not rely upon a comparison with the pay received by her comparators because the pay differential ended more than six years before she lodged her claim.
The Employment Tribunal made no finding as to whether there was a discriminatory policy, rule or practice because it heard no evidence from the company. Instead it concluded that any continuing act came to an end on a specific date, which was more than three months before Ms Kells lodged her claim.
This is an important case that highlights the scope of the Equal Pay Act 1970 to rectify long standing pay anomalies and the EAT was absolutely right to recognise the flaws in the Tribunal's reasoning. There have been numerous domestic and European equal pay decisions which confirm that the applicant and her comparator do not have to be in contemporaneous employment. The six year limitation is a limit on compensation, not on the ability to make a comparison.
The fact that Ms Kell's originating application did not specifically refer to a discriminatory policy, practice or rule was irrelevant. If an applicant can give evidence consistent with a discriminatory policy, practice or rule, then the Tribunal will need to consider whether to draw an inference that such a policy, practice or rule or existed and that requires evidence to be heard from the employer. This case is a timely reminder of the power of the Sex Discrimination Act 1975 to probe established workplace practices as they can constitute continuing acts capable of being discriminatory even if there have been no specific incidents within three months of the lodging of the Tribunal claim.