To succeed in an equal pay claim, claimants have to show (among other things) that they are “in the same employment” - either that they work at the same establishment or are on common terms and conditions - to their comparators. In City of Edinburgh v Wilkinson and ors, the Scottish Court of Session said that claimants were “in the same employment” if the Council was the source of their terms and conditions.

The claimants’ union, UNISON, instructed Thompsons to act on their behalf.

Basic facts

A group of 52 women working in schools, libraries and social work (historically white collar jobs) brought equal pay claims with men employed in manual jobs such as refuse collectors, gardeners, gravediggers and roadworkers.

The women argued that as they were doing work of equal value to that of the men in the same establishment, they were entitled to equal pay. Alternatively, they argued that their comparators would have worked under common terms and conditions to them, if they had worked at the same establishment as them.

Tribunal and EAT decisions

The Tribunal decided that the women and their comparators were not employed at the same establishment because, although the Council was a single undertaking, they worked at different physical locations. However, under European law, they were all in the “same service” and their terms and conditions were subject to a single source - the Council.

The EAT upheld the women’s appeal on the question of whether they worked in the same establishment as their comparators, saying that “only if the facts demonstrate that there are subsets of its operation which ought properly to be regarded as separate establishments, will that presumption be set aside”. As all the claimants and their comparators were all involved in delivering the Council’s core statutory services, the "same establishment" was, in these circumstances, the Council.

It also concluded that, under European law, they were employed in the same service and therefore subject to a single source for their terms and conditions. In this case, the Council was the “single source” because it was responsible for setting the pay terms of both the claimants and their comparators.

Court of Session decision

The Court of Session held that as section 1(6) of the Equal Pay Act referred to “at an establishment” as opposed to “in an establishment”, this conveyed “an association with a locality” rather than the whole body or undertaking. On that basis a school was a distinct establishment from other places of work under the Council’s aegis.

The Tribunal was right, therefore, that, even though the women and their comparators were all employed by the same Council, they worked at different locations under different management structures.

The Court then considered whether the women were employed on “common terms” with the men. It agreed with the Tribunal that they were, not least because the Council had consistently advised its staff since 1999 that they were on single status terms.

That being so, it asked whether a hypothetical male comparator, employed in his current job at the school, would have continued to be employed on terms and conditions applicable to manual workers. It found that he would.

The Court of Session had previously decided in North v Dumfries & Galloway Council that claimants do not have to show that there was a realistic possibility of the comparators working at the claimants’ establishment, just whether they would have stayed on the same terms and conditions.

Holding that the Tribunal had been entitled to conclude from the facts that they would, it rejected the appeal and upheld the Tribunal decision that the claimants and comparators were in the same employment.

Comment

Lord Eassie went even further, saying that there was no question of the comparator’s terms ever changing simply as a result of a change of location. Instead it was the nature of the job which determined the terms and conditions on which claimants and comparators were employed rather than the place they carried out their work.Unfortunately, the other judges did not agree and said that the matter would have to be determined on a case-by-case basis.

This issue is to be heard by the Supreme Court in the case of North v Dumfries & Galloway Council in October 2012 and an appeal to the Supreme Court in Wilkinson may follow.