Sheffield mulls appeal after losing Court of Appeal equal pay case

Sheffield City Council is considering whether to appeal after losing an equal pay case at the Court of Appeal earlier this month.

In Gibson & Ors v Sheffield City Council [2010] EWCA Civ 63, the Court of Appeal ruled that the local authority had discriminated by paying bonus payments to male street cleaners and gardeners, but not to female carers, care and school meals staff.

The council had accepted throughout that the female claimants performed comparable jobs, but argued that the payments were to boost productivity and were not related to gender.

The basic pay of the male street cleaners and gardeners was 33.3% and 38% respectively higher than that of the women.

At the Employment Tribunal stage, it was decided that the men’s work could be measured to provide a benchmark for productivity but the women’s could not. The ET therefore decided that the council need not pay equal wages.

The Employment Appeal Tribunal also concluded that the pay differential was not “tainted by sex”, as set out in Armstrong v Newcastle-upon-Tyne Hospital NHS Trust [2006] IRLR 124. The council had therefore proved the absence of sex discrimination under s. 1(3) of the Equal Pay Act 1970.

Overturning that ruling, Lord Justice Pill said the Armstrong case had no application to the facts in Gibson.

He said: “The effect of the productivity bonus, now stabilised, is discriminatory. A sexual taint is present. The impossibility of applying the productivity bonus to women’s work….is genuine enough but that does not remove the sexual taint from the operation of the scheme.

“The scheme has a disparately adverse effect on women’s work as compared with men’s work and the sexual taint is present. It must be justified objectively if the employers are to succeed. The opportunity to justify is a sufficient protection for employers in circumstances such as the present.”

The case was therefore remitted to the Employment Tribunal to deal with the issue of justification.

Julie Toner, Sheffield’s director of HR, said: "We will carefully consider how we take this matter forward bearing in mind we are dealing with public money. One of the options is that we seek leave to appeal against this ruling as the original hearing supported the council's position."

But Bronwyn McKenna, director of organising and membership at union Unison, called on the council “not to drag the process out even further by lodging another appeal”.

She said: “The women involved in this case have already been forced to jump through a number of legal hurdles to get the fair pay they deserve.”

McKenna added: “This ruling will give other women, taking similar claims against councils across the country, hope that they too can get the fair pay and equal treatment they deserve.”