Mon, 16 Sep 2013
By Fatim Kurji
Fatim Kurji considers the meaning of ‘same employment’ within the Equal Pay legislation.
The Equality Act 2010, and before it the Equal Pay Act 1970, seeks to ensure that male and female employees undertaking the same kind of work have the benefit of equal terms and conditions. Where an inequality is found, the employee is entitled to the benefit of the more favourable term as if it had been included in their contract of employment from the outset.
Unpicking equal pay claims can be tricky, and requires a detailed examination of the terms and conditions of both employees. The starting point is to find a suitable comparator: an employee of the opposite sex who undertakes the same kind of work. In analyzing the kind of work employees perform, there are three relevant categories:
(i) Like work
(ii) Work rated as equivalent
(iii) Work of equal value
If the kind of work falls into one of these three categories, the next step is to consider whether there are material factors other than the difference in sex which justify the difference in terms and conditions. But even before these thorny issues can be addressed, the complainant must get over the starting line and show that the man and woman in question are “in the same employment”.
In the Same Employment
If both employees are employed by the same employer and work from the same establishment, for example they work in the same office, this hurdle is straightforward enough to jump over. However there are occasions when the employees are employed by the same employer but at different establishments. Of this, Lady Hale noted:
“However, in United Kingdom law, there are also occasions when women may not be able to compare themselves with men, even though they are employed by the same employer, because they are not employed at the “same establishment”. But if that provision erects a barrier to a claim which would otherwise be available under European Union Law, it would be our duty to disapply it.”
S1(6) of the Equal Pay Act 1970 addresses this by providing that:
“…men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes.”
In order to establish that they fall within the category behind the ‘or’, a claimant would need to prove common terms and conditions. An obvious example is where the terms and conditions are governed by the same collective agreement; but the intention is to cover an even broader category:
“…the “common terms and conditions” referred to in section 1(6) are not those of, on 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. [Second], by “common terms and conditions” the subsection is not looking for complete correspondence between what those terms are, or would be, in the woman’s place of work. It is enough that they are, or would be, broadly similar.”
The North Case
The recent judgment in the case of North and Others v Dumfries & Galloway Council (Scotland)  UKSC 45 looked at this issue of same employment. A claim was brought by 251 female classroom assistants, support for learning assistants and nursery nurses employed by a local authority. The classroom assistants and support for learning assistants were employed under the same collective agreement, known as the “Blue Book”; the nursery nurses were employed under a supplement to the Blue Book. They were based at a variety of schools; their individual contracts of employment specified the specific school with the proviso that they may be required to work at other locations. They worked less than 35 hours per work during term time only.
These Claimants sought to compare themselves with male manual workers (including groundsmen, refuse collectors, refuse drivers and a leisure attendant) employed by the same authority. The male workers were employed under a different collective agreement known as the “Green Book” and all of them, except the leisure attendant, were based at a specific depot but required to work at other locations. They worked full-time and, unlike the Claimants, were entitled to substantial bonus payments on top of their basic pay.
In order to succeed, the Claimants needed to first establish that they were in ‘the same employment’ as their male comparators. The Employment Tribunal set out the test as follows:
“In the present case, the claimants and the comparators are neither employed under the same terms and conditions nor in the same establishment. It is therefore necessary for the claimants to satisfy the Tribunal that if their comparators were employed at their establishment, they would be employed under broadly similar terms to those that they are employed under at present.”
The Employment Tribunal considered that the Claimants had satisfied them that the male comparators would have been employed under broadly similar terms. It rejected the Respondent’s argument that the comparators would never be employed at the same establishment: they did carry out some of their duties at schools. The Employment Tribunal concluded:
“There was no persuasive evidence before the Tribunal that in the event they were based at the same establishment as the claimants, the comparators would be employed under terms and conditions other than the Green Book.”
The Employment Appeal Tribunal disagreed, accepting the Respondent’s argument that where a claimant sought to use a comparator who is not employed at the same establishment, she must show a “real possibility” that the male could be employed at her establishment to do the same or broadly similar role that he undertakes at his place of work.
The matter went up to the Court of Session who rejected the “real possibility” test preferring instead a position where the Claimant need only prove that the “…comparators would, wherever they worked, always be employed on the same terms and conditions”. However, the Court of Session went on to re-examine the Employment Tribunal’s factual determination that the male comparators would, if they were employed at schools, retain broadly similar terms and conditions, finding that:
“If a manual worker comparator were for any reason to transfer to do their job solely and only in a school context, which would seem an impossible suggestion, then I cannot envisage other than that they would retain core Green Book conditions, but because of the nature of the work undertaken across all educational establishments, their terms and conditions would require to be very significantly varied to make working in such locations possible”.
The Court of Session therefore rejected the Claimants’ appeal not on the basis that the Employment Tribunal had applied the wrong legal test, but rather that there was insufficient evidence to support the factual finding: the male comparators, if they were employed at the Claimants’ place of work, would suffer significant adjustments to take into account the new work environment.
The Supreme Court
When the case came before the Supreme Court, the original finding of the Employment Tribunal was preferred. The correct approaching to answering whether the claimants and their comparators satisfied the ‘in the same employment test’ is to look at whether if, however unlikely, the comparators were transferred to do their present jobs in a different location, would they remain employed on the same or broadly similar terms and conditions? The object of the legislation was to allow comparisons to be made between ‘workers who did not and never would work in the same work-place.’
If, as the Supreme Court upheld, the Employment Tribunal had adopted the correct test, it was not open to the Court of Session to interfere with its findings of fact.
The Supreme Court noted that ‘…the object of the legislation is 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”
The purpose of the ‘same employment’ test is not to establish comparability between the jobs done: that is the function of determining whether the roles are ‘like work’, ‘work rated as equivalent’ or ‘work of equal value’. At the heart of this case was the fact that a single source, namely the local authority, was responsible for the difference in treatment – and was able to remedy the discrepancy; the ‘same employment’ test should not stand as a barrier to the principle of equal treatment.
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