Employees are entitled to equal pay with a comparator of the opposite sex if they are doing like work, work rated as equivalent or work of equal value. In Glasgow City Council v UNISON and ors, the Court of Session has held that this principle applied to a pay protection scheme which excluded women and was therefore discriminatory.
Thompsons were instructed by one of the claimant trade unions, the GMB.
This appeal arose out of the introduction of a new pay and grading system by the Council in 2007 bringing staff and manual workers under one pay scheme, known as the Workforce Pay & Benefits Review. After carrying out a job evaluation scheme, some jobs reduced in value and the Council introduced a Pay Protection Scheme to protect the pay of those affected for a period of three years (known as red-circling).
This pay protection was extended to bonus payments made to male manual workers prior to 2007. There had already been extensive equal pay litigation brought by female workers who had been excluded from these bonus schemes. The claimants brought further claims arguing that if they had been paid these bonuses prior to 2007 then they would also have had those payments protected in the same way as the male manual workers.
Tribunal and EAT decisions
The tribunal found that the pay protection provisions used by the Council were “tainted for sex” but that they were a proportionate means of achieving the legitimate aims of (1) removing unfairness from the system; and (2) ensuring that its in-house workforce could compete with private sector contractors for work.
The claimants appealed to the EAT, which found that the tribunal was wrong to decide that pay protection was brought in to fulfil a legitimate aim, and was implemented in a proportionate manner. Although the first of the aims was unobjectionable, the EAT asked why workers who have been discriminated against in the past and therefore underpaid should not enjoy the same payments in the future.
Decision of Court of Session
The Court of Session has now agreed with the EAT, holding that just because some workers were put at a disadvantage because they suffered the loss of discriminatory bonus payments was not a reason for not paying the claimants the same amount, particularly as their work had been equally rated.
“The issue”, it said, was “not whether all red circled employees should be treated alike; the question is whether treating differently red circled employees and green circled employees whose work has been rated as equivalent can be justified”.
Although a time-limited payment protection scheme was a relevant factor when considering justification, it carried very little weight, according to the Court. Instead, what was important was that the Council gave “no consideration at all” to the effect on the claimants of providing protection to the workers who were formerly in receipt of bonuses. There was absolutely no evidence to suggest that the Council had even considered the position of the claimants, never mind the possibility of offering pay protection to them.
As for the subsidiary reason of avoiding becoming uncompetitive, the Council had advanced little or no evidence to substantiate this assertion. This did not mean it had to provide a detailed breakdown of figures, but at the very least it could have given some thought to the likely number of claimants who would have had to be included in the scheme; the approximate financial cost of doing so; any “knock on” effect this might have had; and the effect that might be expected to have on the way in which the Council was required to conduct its business.
It therefore rejected the Council’s appeal.
This is the latest judgment in a long-running equal pay litigation against Glasgow City Council which has seen the Court of Session previously rule on the question of whether the claimants could compare themselves with comparators employed in associated employers.
On the same day as the judgment was issued, the new Scottish National Party administration in the Council announced that it would not appeal this any further and would seek to settle the claims. There is a further judgment awaited from the Court in relation to the validity of the Council’s job evaluation scheme.