Bainbridge and ors v Redcar and Cleveland Borough Council

This case is the continuation of very long and complex litigation by women council workers for equal pay. In Bainbridge and ors v Redcar and Cleveland Borough Council, the Employment Appeal Tribunal (EAT) said, among other things, that claims based on job evaluation studies cannot be backdated for six years.

It looked at three main issues.

Backdating

If an employer breaches section 1(1) of the Equal Pay Act 1975 requiring all contracts to include an equality clause, claimants are entitled to back pay for up to six years provided that their jobs and those of their comparators remained the same throughout that period.

A number of the women in this case had had their jobs rated under a job evaluation study (JES) that came into effect on 1 April 2004. They argued that they were entitled to the same pay as their comparator for the previous six years.

The tribunal disagreed and the women appealed, saying that they just had to show they were doing more or less the same job as their comparator. Anyway, they said, as the jobs had been rated as equivalent that meant they were of equal value which did attract back pay.  

The EAT, however, disagreed. It said “it is simply wrong to say that somebody in the period prior to the job evaluation study coming into effect has had their job rated as equivalent under a job evaluation study. Plainly they did not.  Whereas it can be said that someone who is found to have been employed on like work or work of equal value was so employed at earlier periods.”  

Equally, the EAT said that just because the jobs had been rated as equivalent did not mean they were automatically of equal value. The JES could be used in evidence as part of an equal value claim, but was not necessarily decisive of it.

Dispute resolution regulations

Secondly, the women claimed that the council was in breach of the dispute resolution regulations by failing to meet with them to discuss matters, and that their compensation should therefore have been increased by between ten and fifty per cent.

The council said there was no point in meeting because the terms of the conditional fee agreement to which the women had signed up meant that they could not settle the claims themselves, but only through their solicitor.

The EAT said the employer was in technical breach of the regulations, but that this was plainly an exceptional case falling within the terms of section 31(4), where it would not be just or equitable to grant an uplift of compensation. In any event, it said that the statutory procedures did not apply to claims relating to periods before October 2004, when the regulations came into force.

Different comparators

The council then argued that once the women had had a judgement in respect of their equal pay claims, they could not then bring another one for the same period, but with a different comparator. The tribunal disagreed, as did a majority of the EAT.

It said that the women were entitled to bring additional claims because otherwise they would be faced with a lottery “forcing them to take a chance on which case to advance.” Each breach of the equality clause could therefore be brought as a separate claim, with different evidence to support it.

Comment

This decision makes clear that a JES can still be relied on as evidence of equal value, provided no real changes have been made to the jobs.  The tribunal also opened the door to “cross band” comparisons, when the woman scores near the top of her band and the male comparator is at the bottom of the next grade up.

But a word of caution with regard to the issue of different comparators. It is clearly right that a like work claim does not debar a future equal value claim, but it is less likely that this can be used in, say, a like work claim without running the risk of costs for unreasonable conduct or the claim being struck out on the basis that all claims arising out of the same facts should be made at the same time.