Supreme Court gives green light to school staff to bring equal pay claims

The Supreme Court has allowed an appeal by a 251-strong group of female council employees and restored an Employment Tribunal decision that they could bring equal pay claims.

The appellants are employed as classroom assistants, support for learning assistants and nursery nurses in Dumfries and Galloway Council’s schools, under terms contained in a national collective agreement known as the ‘Blue Book’.

They wanted to compare their terms and conditions with those of a variety of full-time manual workers employed by the local authority.

The latter workers ('comparators') included groundsmen, refuse collectors, refuse drivers and a leisure attendant. They were employed under a different collective agreement known as the ‘Green Book’.

Unlike the appellants, they were entitled to a substantial supplement on top of their basic pay.

At issue in North and others v Dumfries and Galloway Council [2013] UKSC 45 was whether the appellants had satisfied the threshold conditions set out in section 1(6) of the Equal Pay Act 1970 in order to bring claims alleging that they were employed under less favourable terms and conditions than employees who did work of equal value.

The appellants have to establish that the male employees are ‘in the same employment’ as they are, notwithstanding the fact that they are employed on different terms and conditions at different establishments from the appellants.

In a pre-hearing review, the Employment Tribunal ruled that the appellants were in the same employment as the comparators.

The tribunal concluded that the appellants could show that if the comparators were employed at their establishments they would be employed under broadly similar terms to those under which they are employed at present.

The Employment Appeal Tribunal allowed an appeal by Dumfries and Galloway on the ground that the appellants could not show that there was a “real possibility” that the comparators could be employed in schools to do their existing jobs.

The Court of Session held that this was the wrong test, but that the appellants still failed on the evidence to show that if the comparators were to be based at schools they would be employed on Green Book terms and conditions. The appellants took the case to the Supreme Court.

The Supreme Court today (26 June) unanimously allowed their appeal. 

Under s. 1(6) of the 1970 Act, claimants who do not work at the same establishment as their comparators, must show that they are both “employed at establishments in Great Britain … at which common terms and conditions of employment are observed either generally or for employees of the relevant classes”.

Lady Hale, who gave the only judgment in the Supreme Court, said the ‘common terms and conditions’ referred to in s. 1(6) are not those of, on the one hand, the women applicants and, on the other hand, their claimed comparators.

“They are, on the one hand, the terms and conditions under which the male comparators are employed at different establishments from the women and, on the other hand, the terms and conditions under which those male comparators are or would be employed if they were employed at the same establishment as the women,” she said.

Lady Hale added that by ‘common terms and conditions’, the subsection was not looking for complete correspondence between what those terms were, or would be, in the woman’s place of work. “It is enough that they are, or would be, broadly similar.”

The judge said it was no answer to say that no such male comparators ever would be employed, on those or any other terms, at the same establishment as the women. “Otherwise, it would be far too easy for an employer so to arrange things that only men worked in one place and only women in another.”

Lady Hale added: “This point is of particular importance, now that women are entitled to claim equality with men who are doing completely different jobs, provided that the women are doing jobs of equal value. Those completely different jobs may well be done in completely different places from the jobs which the women are doing.”

She concluded that the correct hypothesis to consider was the transfer of the comparators to do their present jobs in a different location.

The evidence from Dumfries and Galloway’s Group Manager of Human Resources confirmed that, although he could not envisage it happening, in the event that the comparators were based in schools then they would retain their Green Book conditions.

Lady Hale said the Employment Tribunal had adopted the correct test and was entitled to find it satisfied on this evidence. It was not necessary to show that it was a real possibility or feasible to co-locate the relevant workers. “Both add an unwarranted gloss to the wording of the subsection as interpreted by the British Coal Corporation case.”

The judge said that to adopt such a test would defeat the object of the legislation, which 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.

“It stands to reason, therefore, that some very different jobs which are not or cannot be carried out in the same workplaces may nevertheless be rated as equivalent or assessed as having equal value,” Lady Hale found.

She added: “The fact that of necessity their work has to be carried on in different places is no barrier to equalising the terms on which it is done. It is well known that those jobs which require physical strength have traditionally been better rewarded than those jobs which require dexterity. It is one of the objects of the equality legislation to iron out those traditional inequalities of reward where the work involved is of genuinely equal value.”

Lady Hale said it was not the function of the ‘same employment’ test to establish comparability between the jobs done. “Its function is to establish the terms and conditions with which the comparison is to be made. The object is simply to weed out those cases in which geography plays a significant part in determining what those terms and conditions are.”

The judge said the construction of s. 1(6) put forward by the appellants was more consistent with the requirements of European Union law, to which the Act gave effect.

Case law of the European Court of Justice had established that for the principle of equal pay to have direct effect, the difference in treatment must be attributable to a single source which is capable of putting it right.

Lady Hale said that in this case it was “quite clear” that the difference in treatment between the claimants and their comparators was attributable to a single source, namely the local authority which employed them and which was in a position to put right the discrepancy if required to do so.

She added: “If s. 1(6) were to operate as a barrier to a comparison which was required by EU law in order to give effect to the fundamental principle of equal treatment, it would be our duty to disapply it. However…..s. 1(6) sets a low threshold which does not operate as a barrier to the comparison proposed in this case.”

The case will now return to the tribunal, which will decide whether the appellants’ work is in fact of equal value to that of the comparators and, if so, whether there is an explanation other than the difference in sex for the difference between their terms and conditions.

This article is based on the Supreme Court's press summary.