The ongoing battle over equal pay

Local authorities both north and south of the border are involved in three significant equal pay appeals. Two of them relate to the selection of comparators and the third deals with a crucial point on time limits. Charles Pigott reports.

Who is my comparator?

Claimants in local authority equal pay disputes are typically cleaners, teaching assistants, care workers and the like who are predominantly female and who wish to compare their pay with predominantly male workers on manual grades employed elsewhere in the council. In the three most recent cases on comparators many of the claimants were employed at local authority schools.

In order to get their cases off the ground, they needed to show that they were “in the same employment” as their comparators for the purposes of the Equal Pay Act. That in turn involved considering two separate questions: were they employed at the same establishment? If not were common terms and conditions observed both at their establishment and that of their comparators, either generally or for employees of the relevant classes?

It now appears that the first question is the easier one to answer. The Court of Session Inner House (the Scottish equivalent of the English Court of Appeal) has given what looks like definitive guidance in November last year. In City of Edinburgh Council v Wilkinson the court had to decide whether a local authority school was a separate establishment for equal pay purposes, or whether establishment should be interpreted widely enough to cover the Council’s entire undertaking. It decided that establishment meant broadly the claimant’s physical place of work. So all other things being equal, a typical local authority school would be an establishment for these purposes.

It follows that claimants working at schools who wish to compare their pay to workers employed elsewhere by the council will typically need to address the second limb of the definition and show that common terms and conditions apply. But what exactly does that mean, particularly when the claimants work at schools, which often have significantly different arrangements for working hours and holidays?

This question was not conclusively addressed in Wilkinson because the employment judge had found as a fact that the terms and conditions of both the claimants and their comparators were covered by a single collective agreement, known as the red book in Scotland. The same finding was not made in another similar Scottish case, North v Dumfries and Galloway Council, decided by the Court of Session earlier in 2011. In that case it concluded that a cross-establishment comparison was not possible, at least under domestic law. This was because, were a male comparator on a manual grade to be employed at a school, his terms and conditions would have to be changed significantly. It therefore could not be said that common terms and conditions were observed between employees of the relevant classes. This will not be the last word on the matter because the claimants have appealed to the Supreme Court, which will hear their appeal in October 2012.

Even if they do not win the appeal, the claimants in North have another argument to deploy, based on the case law of the European Court of Justice under the equal treatment provisions of the EU Treaty. The ECJ has developed a different for comparators, which runs in parallel to the test under the Equal Pay Act. Known as the “single source” test, it states that a comparison is possible where a single entity is responsible for setting the terms and conditions of both claimant and comparator.

Although the single source test is seen as broader than the corresponding provisions of the Equal Pay Act, in Beddoes v Birmingham City Council the employer sought to use it to narrow the scope of the permissible comparison. It argued that non-teaching staff in schools could not compare their pay with workers elsewhere in the Council because the school’s delegated budget meant that their terms and conditions no longer emanated from a single source. The Employment Appeal Tribunal ruled that the single source test did not impose an additional hurdle on claimants where the requirements of the Equal Pay Act were otherwise met. However, like North, this case is under appeal, this time to the Court of Appeal, which is due to consider the case in the next few months.

All in vain?

Since October 2010 the Equal Pay Act has been absorbed into the Equality Act 2010. Although it is largely a consolidating measure the comparator test has been re-worded. Instead of stipulating that common terms and conditions have to be observed “for employees of the relevant classes”, the Equality Act provides that these must apply as between the claimant and her comparator. One wonders whether once North has been decided by the Supreme Court, similar comparator issues will need to be litigated all over again.

Time limits up in the air

Thanks to the part-time pensions litigation, which is now nearing its end, the provisions of the Equal Pay Act on time limits are now considerably more complicated than they used to be. But the basic rule remains that claims in the employment tribunal need to be brought within six months of the end of the employment, and this principle has been carried through to the Equality Act.

However, until recently no one seems to have thought that there was an alternative option available to claimants who had missed the relatively short employment tribunal time limit: bringing proceedings in the High Court. This possibility has been explored in two cases involving Birmingham City Council, one of which (Birmingham City Council v Abdulla) reached the Court of Appeal last year. Although the High Court has a discretion under the Equal Pay Act to strike out claims that could “more conveniently” be brought in the employment tribunal, the Court of Appeal has decided it should not do so just because the claimants had missed the employment tribunal time limit, and were using the High Court to keep their claim alive. On the face of it this gives claimants who have left employment an extra five and a half years to bring their claims, though they would be wise not to leave it so long since the rules on claiming back-pay may be less generous in the High Court. However the Council has applied to the Supreme Court for permission to appeal, and it seems a fair bet that this will be granted, given the importance and novelty of the point.

Charles Pigott is a Professional Support Lawyer at Mills & Reeve. He can be contacted on 01223 222411 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..