Equal pay claimants who rely on a comparator at a different “establishment” have to show that they would have common terms if they were all employed in the same place. The Supreme Court held in North and ors v Dumfries and Galloway Council that claimants just have to show that the comparators would stay on broadly similar terms to their current workplace if they were transferred to do their present jobs in a different location.
Over 200 classroom assistants, learning assistants and nursery nurses employed in local authority schools lodged equal pay claims with male manual workers also employed by the local authority as road workers, refuse collectors and leisure attendants based at depots around the local authority area and at a swimming pool.
The women claimed that they were employed on work of equal value to their male comparators and that they were in the “same employment” as them, as required under section 1(6) of the Equal Pay Act 1970.
Decisions of lower courts
Relying on the test in British Coal Corporation v Smith, the tribunal held that the women could make a hypothetical comparison between their terms and conditions and those that would apply to their comparators if they worked in the same place (even if the comparator would never be employed there in reality). It upheld their claim on the basis that there was no compelling evidence to suggest the men would not be employed on broadly similar terms if they worked at the schools.
But the EAT ruled that there had to be a “real possibility” that the comparators would be employed at the women’s “establishment” doing jobs that were broadly similar to the comparators’ current jobs, on terms and conditions that were also broadly similar to those under which they were currently employed.
The Court of Session (the Scottish equivalent of the Court of Appeal) said the British Coal case did not require the claimants to meet the test of a “real possibility”. However, they did not uphold the women’s claims because they could not show that a “transposed” male comparator would be employed on broadly the same terms as men working in the depots.
The Supreme Court agreed that there was no need to meet the test of a “real possibility”, not least because it would allow employers to get round the law by organising their workplaces so that women worked in one place and men in another.
The object of the legislation was to secure equality of treatment, not only for the same work, but also for work rated as equivalent or assessed by the experts to be of equal value. There was no reason why some jobs which were very different and could not be done in the same workplaces might still be rated as equivalent or assessed as having equal value.
The function of the “same employment” test was not to establish comparability between the jobs, but to establish the terms with which the comparison should be made and weed out those cases in which geography played a significant part in deciding conditions. The claimants just had to show that the comparators would stay on broadly similar terms to their current workplace if they were transferred to do their present jobs in a different location.
For the principle of equal pay to have direct effect under EU law, the difference in treatment must be attributable to a single source which was capable of putting it right. In this case it was quite clear that the difference in treatment between the claimants and their comparators was attributable to a single source - the local authority which employed them - and which was in a position to put things right if required to do so.
The Court therefore allowed the appeal and restored the decision of the tribunal.