The legal principle underpinning equal pay is a simple one - that men and women should receive equal pay for equal work or work of equal value.
Unfortunately, the legislation has proven anything but simple to implement. In the PCS-backed case of Robertson v Department for Environment, Food and Rural Affairs (DEFRA), the Court of Appeal has said that civil servants in one Government department cannot compare their pay with civil servants in another.
What were the basic facts?
The case was brought by six men employed by DEFRA. They argued that they should receive the same pay as two female senior personal secretaries in the Department of Transport, Environment and the Regions (DETR), whose jobs had been rated equivalent to theirs under the Civil Service job evaluation scheme.
Their pay had previously been negotiated centrally, but following pay delegation it was now set by individual departments.
Relying on Article 141 of the EC Treaty, the men argued that they could make an equal pay comparison across departments because they had the same employer, that the source of their pay was the same and their employer (the Crown) had the right to revoke pay delegation.
Was it enough to have the same employer?
In Lawrence v Regent Office Care Ltd (2003, ICR 1092), the European Court of Justice (ECJ) said that employees can make comparisons with people who work for different employers, as long as there is a single source responsible for the difference in pay.
The employees, however, argued that the single source argument only applied if there were different employers, and was therefore not applicable in this case. But the Court of Appeal disagreed. It said that it was necessary to consider whether the terms and conditions were traceable to one source in every case.
It said that the approach of EC law is to locate the single source with the body responsible for setting the relevant terms. This is not determined by only addressing the formal legal question of the identity of the employer.
Was the crown the single source?
Not surprisingly, the men argued that the Crown, as well as being the common employer was also the single source referred to in Lawrence.
The Court of Appeal agreed with the appeal tribunal that, following a transfer of functions order in the mid-1990s, the pay and conditions of civil servants was now the responsibility of individual departments.
As a result, there were different pay scales and terms of service applying in different departments, and there was no single source to which the differences in pay could be attributed.
Had the crown delegated?
The men argued, however, that the Crown continued to be the single source or "the body responsible" because there was still a Minister for the Civil Service (the Prime Minister) who could reassert his power over individual departments at any time.
The Court of Appeal was, however, not convinced. It said that although there was a theoretical possibility of the Crown exercising its power, that did not make it "the body responsible" for the actual negotiations and decisions on pay by individual departments resulting in the differences about which the men were complaining.
What did the court decide?
The court therefore decided that DEFRA was the single source responsible for the men's pay and conditions of employment, and DETR was the single source responsible for the comparators' pay and conditions.
There was no one source to which the pay of the men and their comparators could be attributed. The fact that the Crown was the common employer was not enough to make it the single source responsible for determining levels of pay in both DEFRA and DETR.
Comment
This is a disappointing decision, which suggests that employers can departmentalise their organisation in order to avoid equal pay claims. The case is being appealed.