Equality of terms
Labour & European Law Review Weekly Issue 239 13 October 2011
When considering whether there is equal pay between a man and a woman, the Court of Appeal in Brownbill and ors v St Helens and Knowsley Hospital NHS Trust has confirmed that when there is a term of a similar kind in a claimant and comparator contract, these terms should be compared separately, not lumped together with other terms.
The women’s union, UNISON, instructed Thompsons to act on their behalf.
Mrs Brownbill and her colleagues (mainly health care assistants) claimed that prior to the implementation of a new pay structure called Agenda for Change in August 2004, terms relating to unsocial hours in their contracts were less favourable to similar terms in the contracts of their male comparators (drivers, porters and parking attendants).
The women were paid time and one third for working their normal rostered hours on Saturday and time and two thirds for working on Sunday and bank holidays. The men, by contrast, were paid time and a half for Saturday and double time for Sundays and bank holidays.
The women brought equal pay claims.
Tribunal and EAT decisions
The employment Tribunal judge found that, following the decision in Degnan v Redcar and Cleveland Borough Council (in which the Court of Appeal held that an attendance allowance was part of a term dealing with basic pay), the unsocial hours payments had to be calculated as part of the women’s basic pay.
As the women earned more overall than their male counterparts when the payments were included, they had not been treated any less favourably than the men.
The EAT distinguished Degnan, saying that case turned on its own particular facts. It went on to find that it was irrelevant, for the purposes of considering which terms should be compared, whether Mrs Brownbill and her colleagues would be better off overall if they received a similar uplift to the men.
Instead, the relevant question was whether “any term” of the women’s contract was “less favourable to the woman than a term of a similar kind” in her comparator’s contract, which required the terms to be looked at individually, not as a whole.
Court of Appeal decision
The Court of Appeal agreed with the EAT.
It said that once the Employment Tribunal judge had found that there were terms in the women’s contracts that could be compared with terms in the men’s contracts, i.e. the terms relating to payment for working unsocial hours, it should have carried out the comparison in line with the decision in Hayward v Cammell Laird Shipbuilders Limited.
The Court of Appeal stressed that both Hayward and more recent European cases showed that the focus of the law is on equality of terms, not the total pay actually received.
This is an important case, which will affect a large number of claimants who work in the NHS, and who received a lower rate of pay than certain comparators when working unsocial hours at weekends and nights.