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£ KEEPING PAY EQUAL Online supplement Equal Pay and the Law Guidance on Local Grading and Pay Reviews Trade Union Side of the Local Government Services NJC
KEEPING PAY EQUAL - unison.org.uk€¦ · KEEPING PAY EQUAL Online supplement Equal Pay and the Law Guidance on Local Grading and Pay Reviews Trade Union Side of the Local Government
Microsoft Word - TU grading and pay online legal supplement ready
for web[1].docxOnline supplement Equal Pay and the Law
Guidance on Local Grading and Pay Reviews Trade Union Side of
the
Local Government Services NJC
How to obtain case judgments
..........................................................................................................
2
Which judgments do tribunals and
other courts have to follow?
..................................................... 3
What route can equal pay claims
take?
.............................................................................................
3
What about in Northern Ireland?
......................................................................................................
3
What is the impact of the
Scotland Act 2016?
..................................................................................
4
How does the Equality Act 2010
(EqA) work in relation to equal
pay? .............................................
4
Who is covered by the Equality
Act?
.................................................................................................
4
Fixed term employees and equal pay
................................................................................................
5
Agency workers and equal pay
..........................................................................................................
6
Part time workers and equal pay
.......................................................................................................
7
Job evaluation and the role of
union negotiators
.............................................................................
8
What is ‘pay’ under the Equality
Act?
...............................................................................................
8
Who can be a comparator for an
equal pay claim?
.........................................................................
10
What does ‘single source’ mean and
how does it affect Article 157
claims? .................................. 11
Is there a legal definition of
‘job evaluation’?
.................................................................................
14
What if the employer wants to
use two JE schemes?
.....................................................................
15
What is indirect sex discrimination
for equal pay purposes?
..........................................................
15
What are the main material factor
defences?
.................................................................................
17
TUPE protection
...............................................................................................................................
20
What could happen if a collective
agreement is discriminatory?
.................................................... 23
What are the time limits for
equal pay cases?
................................................................................
24
Settling equal pay claims
.................................................................................................................
25
Pay discrimination and protected
characteristics (other than sex)
................................................. 25
Measuring pay gaps (other than
gender)
........................................................................................
27
Gender pay gap reporting
................................................................................................................
27
The Equality Framework for Local
Government (EFLG)
...................................................................
28
Accessing data for local grading and
pay reviews
...........................................................................
30
Disclosure of information to trade
unions for collective bargaining
purposes ............................... 30
The Public Sector Equality Duty –
specific duties
............................................................................
33
Northern Ireland: Equality schemes
................................................................................................
35
SUPPLEMENT TO PART 2 – EQUAL PAY AND THE LAW
Who is the Supplement for? This
Guidance is a supplement to NJC
Trade Union Side Guidance on
Equal Pay and the Law which
is in Part 2 of the
NJC Trade Union Side Guide on
Pay and Grading Reviews in
local government organisations.
The Supplement is intended for
lay representatives and paid officials,
particularly those closely involved
in or supporting union
representatives carrying out local
grading and pay reviews, such as
members of the local negotiating
team and full-time officials.
The content goes into more detail
on some of the topics covered
in Part 2, particularly in
relation to the law. It assumes
that you have a working
knowledge of equal pay and
discrimination law i.e. that you
are familiar with the key legal
concepts and broadly how they
apply in practice.
There are some new topics in
the Supplement (not included in
Part 2) but most sections
have a related section in Part
2 which should be read first.
How to obtain case judgments Using
the references given for the
cases mentioned in Part 2,
you can access the full
judgments online apart from employment
tribunal (ET) judgments.
HM Courts and Tribunals announced
in June 2016 that new ET
judgments would be available
online but that no decision had
yet been taken on converting
existing judgments. The online
service covers judgments in both
England and Wales and Scotland
and includes some transcripts going
back to 2015.
About 100 decisions from 2016
are already up there, and you
can search by name, date,
judge or jurisdiction code.
Here is the link:
https://www.gov.uk/employment-tribunal-decisions
For earlier ET judgments, currently
you have to make a
written request to the Bury St
Edmunds Tribunal office or (for
Scottish ET judgments) the Glasgow
office but check online in
case the position changes.
Legislation is available online. Public
libraries may also have statutes,
law reports, guides to the law
and publications that report and
comment on cases.
3
Which judgments do tribunals and
other courts have to follow?
Not all judgments have the same
status. Employment tribunal (ET)
judgments (England, Wales and Scotland)
are not binding on other
tribunals. They are (as lawyers
put it) no more than persuasive.
In other words, they do
not have to be applied by
other tribunals, even if the
facts and circumstances of two
cases seem to be identical.
Exceptionally, some important equal
pay tribunal cases (which have
not been appealed) have been
cited approvingly by judges in
the appellate courts (i.e. the
Employment Appeal Tribunal and
above).
The decisions of the higher
courts are binding authority on
the lower courts (i.e. employment
tribunals) and create ‘precedents’
which tribunals should follow (where
they tally with the particular
circumstances of the case). These
decisions are known as ‘case
law’ i.e. judge-made law as
opposed to statute (law made by
the Parliament/Assembly).
Judgments of the Employment Appeal
Tribunal (EAT) are binding
authority on employment tribunals (ETs)
in Great Britain. Decisions of
the Court of Appeal are
binding on ETs and the EAT (in
England and Wales) while decisions
of the Inner House of the
Court of Session are binding on
the EAT and ETs in Scotland.
Decisions of the Supreme Court
(and its predecessor, the House
of Lords) are binding on all
domestic (UK) courts, including
those in Northern Ireland.
What route can equal pay claims
take? Most equal pay claims
are dealt with in the
employment tribunal but in some
circumstances cases can be taken
to the county court or High
Court (England & Wales) or
sheriff court (in Scotland). Appeals
from the judgments of these
courts go to the High Court
and (in Scotland) the Court
of Session (Outer House); and
from there to the Supreme
Court.
Judgments of employment tribunals can
only be appealed to the
EAT on a point of law –
basically, the party who wants
to the appeal (the appellant)
has to show that the ET
got the law wrong in some
way.
In certain circumstances, tribunals in
the UK can refer cases to
the Court of Justice of the
European Union (CJEU) but usually
references to the CJEU are made
by the higher courts where
(for instance) a ruling is sought
on the interpretation or application
of EU law to the case in
question.
What about in Northern Ireland? The
Equality Act 2010 does not
apply in Northern Ireland -
there is separate legislation on
equal pay and sex
discrimination. Equal pay claims are
made to the Industrial Tribunals,
as are discrimination claims apart
from those relating to religion
or belief and political opinion.
They are dealt with by the
Fair Employment Tribunal. Decisions
of both bodies can be appealed
(on points of law) to the
Court of Appeal.
4
What is the impact of the
Scotland Act 2016? At the
time of writing, in Scotland,
the employment tribunals and the
EAT were ‘reserved tribunals’ although
all powers over their management
and operation are devolved to
the Scottish Parliament, under
the Scotland Act 2016. This means
that (with some exceptions)
employment law will continue to
be made by the Westminster
Parliament and apply in England,
Wales and Scotland; likewise, judgments
of the EAT in England and
Scotland will continue to be
binding authority in ETs in
both countries and Wales.
The legislation on equal pay, set
out in the Equality Act 2010,
will continue to apply in
Scotland (it remains ‘reserved’ under
the Scotland Act 2016). However,
the 2016 Act gives powers
to the Scottish Parliament to
impose new statutory requirements on
public bodies in Scotland (and
cross-border public authorities with
Scottish functions), including the
introduction of gender quotas
and the consideration of
socio-economic inequality when making
strategic decisions.
Given its powers under the Scotland
Act, the Scottish Government has
announced its intention to abolish
employment tribunal fees. Please
check with your union’s Scottish
office for updates.
How does the Equality Act 2010
(EqA) work in relation to equal
pay? As explained in Part 2,
the old provisions of the Equal
Pay Act 1970 are included (with
some changes) in Part 5 of
the EqA 2010, ‘Equality of
Terms’(sections 64-71).
Who is covered by the Equality
Act? This section expands on
the Part 2 content.
What about those on zero-hours
contracts? According to the (former)
BIS – the Department of
Business, Innovation & Skills -
‘zero hours contract’ is a
non-legal term used to describe
many different types of casual
agreements between an employer
and an individual.’ (BIS, 2015).1
BIS (2015) explains that ‘generally
speaking, a zero hours contract
is one in which the
employer does not guarantee the
individual any hours of work.
The employer offers the individual
work when it arises, and
the individual can either accept
the work offered, or decide not
to take up the offer of
work on that occasion.’
Self-employed people are not covered
by the EqA 2010 or Article
157 TFEU. Nevertheless, there can
be argument about whether a
person is ‘in employment’ or is
self-employed.
Article 157 provides a right to
equal pay to ‘workers’. A
worker is a person who
‘performs services for an under
the direction of another person
in return for which he
receives remuneration’. ‘Worker’ is not
intended to include an
independent provider of services ‘who
is not in a relationship of
subordination with the person
receiving the service’. (There is
now apparently little difference
between Article 157 and the EqA
2010 in the definition of
‘worker’ and a person who is
‘employed’.)
1 ‘Zero hours contract’ is not defined in the
2015 Regulations prohibiting exclusivity terms in zero hours
contracts.
5
If a person on a zero hours
contract does not have a
‘contract of employment’, she would
be covered by the EqA 2010
if she is otherwise ‘employed’
i.e. she has a contract
(written or oral) to personally do
the work (basically, where she
cannot send someone else to do
the work in her place).
The distinction made between employed
and self-employed workers can be
a problem for casual workers.
What about casual workers?
In general, casual workers are
classified as independent contractors
rather than employees because there
is no obligation on the
employer to offer them work and
no obligation on the part of
person to accept work that
is offered. In legal terms,
there is no ‘mutuality of
obligation’.
Casual work is typified by
breaks between periods of work.
This can cause problems for
casual workers who regularly work
for the same employer and
claim that they are employees or
contracted personally to do the
work. For example, in Windle v
Secretary of State for Justice
(2016 EWCA Civ 459) the
claimants were court interpreters. They
had to show that they worked
in a subordinate position, carried
out the work personally and
were integrated into the
employer’s business. The interpreters’
claim fell - the Court of
Appeal decided that because they
were under no obligation to
accept any next assignment, this
pointed towards them not being
in a subordinate position.
The outcome of cases where the
employment status of the claimant
is at issue will depend on
the particular facts of each
case but Windle is unhelpful
in ruling that ‘mutuality of
obligation’ between assignments is
a relevant factor to be
taken into account in assessing
the extent of subordination. This
was already the position in
relation to unfair dismissal
claims (under ERA 1996), but the
Court of Appeal have extended
it to discrimination claims (under
the EqA 2010) including equal
pay claims. The judgment could
make it harder for zero
hours workers and other casual
workers who do not have a
contract of employment to show
that they have a contract
personally to do work. (At
the time of writing, it was
not known if Windle would be
appealed to the Supreme Court –
please check for updates.)
The statutory definition of
‘fixed-term contracts’(see below) could
cover ‘seasonal’ or ‘casual’
employment contracts that last for
a short period or cover a
specific task, for example, a
summer deck-chair attendant. A
casual worker may also be able
to be classed as an employee
in certain other circumstances –
please refer to other union
guidance for further information.
Note: Unlike temporary employees, there
is no reference in the
Green Book to casual workers.
Fixed term employees and equal pay
The Fixed-Term Employees (Prevention
of Less Favourable Treatment)
Regulations 2002 (the FTE Regs)
provide protection to an employee
who is employed under a
fixed-term contract.
The Regulations apply to ‘employees’
not ‘workers’. (They exclude
employees working under a contract
of apprenticeship or an
apprenticeship agreement.)
Under the Regs, a fixed-term
employee has the right ‘not to
be treated less favourably than
the employer treats a comparable
permanent employee as regards
the terms of his
6
contract, or by being subjected to
any other detriment by any act,
or deliberate failure to act,
of the employer’ (Reg 3(1)).
The Regs cover pay and
pensions.
In Coutts and Co plc and anor
v Cure and anor (2005 ICR
1098 EAT), the EAT held that
non- payment of a (non-contractual)
bonus to a fixed-term employee
amounted to a detriment. The
comparator (a permanent employee) and
the claimant must be employed
by the same employer; engaged
in the same or broadly
similar work; and work at the
same establishment.
The fixed-term employee must show
that the less favourable treatment
was ‘on the ground that’ she
(or he) ‘is a fixed-term
employee’ – Reg 3(3)(a). But
her claim will fail if the
less favourable treatment ‘is
justified on objective grounds.’
This will include situations where,
taken as a whole, the
fixed-term employee’s contract is at
least as favourable as the
comparable employee’s contract. The
‘total package’ approach is
different from the EqA ‘term by
term comparison approach.
A claim under the FTE Regs will
fail if the employer shows
the treatment was for a reason
other than on the ground that
she is a fixed-term employee.
Note: The Green Book Part 2:9
states that ‘temporary employees
shall receive pay and conditions
of service equivalent to that
of permanent employees.
Agency workers and equal pay The
Agency Workers Regulations 2010 seek
to protect agency workers in
their relationship with ‘temporary
work agencies’ and ‘hirers’ (the
end-users of an agency worker’s
services). Temporary work agencies
(TWA) and hirers must ensure that
an agency worker who has
completed a 12 weeks qualifying
period receives the same pay as
he or she would be
entitled to for doing the same
job, at the time the qualifying
period commenced, had he or
she been recruited directly by the
hirer – Reg 5(1). Pay is
pay for work done and
includes basic pay, overtime payments,
allowances for working shifts or
unsocial hours, payments for annual
leave and bonus payments. (But
any bonus, incentive payment or
reward that is not directly
attributable to the amount or
quality of the work done is
excluded.) Most benefits in kind
fall outside the scope of
‘pay’.
Where the ‘Swedish derogation’ applies,
i.e. where the agency worker
has a permanent contract of
employment with the TWA which
satisfies certain conditions and she
is paid a minimum amount
between assignments, she is not
entitled to parity of pay under
the Regulations.
The EqA 2010 definition of who
is ‘employed’ for equal pay
purposes applies to agency
workers but she may have difficulty
finding a comparator with whom
she is ‘in the same
employment’. The ‘common terms’ argument
might assist here (see the
earlier sections in Part 2 on
who is covered by the EqA
equality of terms provisions).
The EqA 2010 s.41 prohibits
(specified) discrimination by ‘principals’
(end-users) against agency workers
but there is no similar
provision in respect of equal
pay.
There has been considerable litigation
over the question of when
agency workers are employees of
the end-user. The leading case
is James v Greenwich London
Borough Council 2007 ICR 577
EAT (approved by the Court
of Appeal, 2008, ICR 545).
The threshold for establishing
employment status is high.
7
Part time workers and equal pay
Union representatives need to
take careful account of the
differences between the Part- time
(Prevention of Less Favourable
Treatment) Regulations 2000 (the PWT
Regs) and the EqA 2010 in
advising members who work
part-time which route might be
best to use in challenging less
favourable treatment.
Most part-time workers in local
government are women and will be
covered by the EqA 2010
equality of terms provisions for
equal pay purposes – as will
men working part-time where the
comparator is a female employee.
An exception to this is
where part-time workers do not
have a contract of employment
or apprenticeship or a contract
personally to do work (see
earlier sections of Part 2).
A part-time worker cannot claim
equal pay (i.e. under the EqA
equality of terms provisions) on
the basis that he or she
is a part-time worker – she
can only make an equal pay
claim on the basis of her
sex, i.e. she is paid less
than a person of the opposite
sex. (The comparator can work
full or part-time.)
The Part-time (Prevention of Less
Favourable Treatment) Regulations 2000
(the PWT Regs), give part-time
workers (men and women) a right
not to be treated less
favourably than full- time workers
unless any difference in treatment
can be objectively justified.
Under the Regulations, a part-time
worker can compare her or his
treatment only with a full-time
comparator (of either sex).
The part-time worker and her
comparator must be engaged in
‘the same or broadly similar
work’ having regard, where relevant,
to whether they have a similar
level of ‘qualification, skills and
experience – Reg 2(4)(a) (ii).
This is a different test to
that used by the EqA 2010.
Where a female part-time worker
is doing the same or broadly
similar work to a full-time
male worker in the same employment
but is paid less, she may
be better advised to pursue an
equal pay claim, depending on
whether it can be shown that
she is doing equal work with
her comparator.
Under the PTW Regs, it is not
entirely clear that the comparison
of contractual terms has to be
made on a term by term
basis (as it must for equal
pay claims – as explained in
Part 2).
The claimant and comparator must be
in the same employment but this
does not include an associated
employer (as it does under the
EqA 2010).
Note: This is a very brief
outline of the PTW Regs –
please refer to other union
guidance for more detailed
information.
Part-time workers and training courses
Paid time-off for training (for
example) is ‘pay’ within the
meaning of Article 157
(Arbeiterwohlfahrt der Stadt Berlin eV
v Bötel 1992 IRLR 423, ECJ;
Davies v Neath Port Talbot
Borough Council 1999 ICR 1132, EAT).
Part 2 of the Green Book
states:
‘8.1 Part time employees shall have
applied to them the pay and
conditions of service pro- rata to
comparable full time employees in
the same authority, except for:
a) training and development - where
part time employees should have
access equal to that of full
time employees and when on
training courses outside their contracted
daily hours shall be paid on
the same basis as full time
employees’
8
b) the car allowance scheme - which
applies to part time employees
in full on the same basis
as full time employees.’
(Note that this provision applies to
female and male part-time
employees.)
Job evaluation and the role of
union negotiators Part 1 of
the Guide stressed the importance
of union representatives being
involved in the job evaluation
process in organisations at every
stage.
What if the JE process is not
finished?
This question was answered briefly in
Part 2 – also see Part 1.
What if pay and /or benefits
are non-contractual?
It may not always be clear
whether an element of pay
(such as a performance-related
payment) is contractual or not.
Under the previous legislation, to
protect her position, a claimant
doing equal work with her
comparator (but receiving less
performance-related pay) would submit
an equal pay claim and a
sex discrimination claim. If the
tribunal established (for example) that
the payment was contractual, the
sex discrimination claim could
fall away. Pleading in the
alternative (as the lawyers call
it) is still possible under the
EqA 2010 although the equality
of terms provisions seems to be
stricter about excluding sex
discrimination claims (see section 70).
Union representatives should get legal
advice on how claims should be
framed where there is doubt
about which route applies -
sex discrimination or equality of
terms. (It is important to
bear in mind that different
time limits apply to equal pay
and sex discrimination claims).
Maternity pay
Maternity pay (contractual and
statutory) is in scope of Article
157, however the ECJ has
held that women taking maternity
leave are in a special
‘protected’ position, so their
situation is not comparable with that
of men or women actually at
work. Therefore they are not
entitled under Article 157 or
the recast Directive to full pay
during maternity leave, although
they must receive pay rises
awarded during maternity leave.
(Gillespie v Northern Health and
Social Services Board 1996 IRLR
214 ECJ). See the Part 2
section on maternity leave for
information on the provisions of
the EqA 2010.
The ECJ has held that a
public employer’s scheme to make
subsidised nursery places available to
employees did not constitute ‘pay’
under Article 157 (Lommers v
Minister van
9
Landbouw, Natuurbeheer en Visserij 2002
IRLR 430, ECJ) but that
they were a ‘working condition’
under the (then) EU Equal
Treatment Directive, now part of
the recast Directive. (By ‘working
condition’ the ECJ meant that
the nursery places facilitated the
exercise of the occupational
activity of the employees concerned.)
What is the remedy in successful
equal pay cases?
The Act entitles the claimant to
equality in pay and other
contractual terms of employment.
This means:
! The less favourable term of her
contract is modified so as to
not be less favourable than the
corresponding term in his
contract. (So, for example, if
her basic hourly rate of pay
was lower, it would have to
raised to his hourly rate of
pay)
! If she does not have a term
which corresponds to a term in
his contract (that benefits him),
the terms of her contract are
modified so as to include such
a term. Generally,
successful claimants will be entitled
to back pay – the pay she
should have been receiving -
and possibly interest on the
arrears.
Issues for union representatives to
consider in settling members’ claims
or potential claims are outlined
later in the section ‘Settling
equal pay claims’
Can the employment tribunal (ET)
make recommendations to the
employer to put right wider
pay discrimination?
In some circumstances, the tribunal
can order the employer to carry
out an equal pay audit
(outlined in Part 2).
However, the power of the tribunal
to make recommendations (beyond those
affecting the successful claimant/s)
was removed by the Deregulation
Act 2015. Tribunals can no
longer make wider recommendations to
‘obviate or reduce the adverse
effect of a contravention’ of
the EqA, Part 5 (Work) -
which covers equal pay and
employment related discrimination claims.
For example, where the tribunal
found that a system for
assessing performance indirectly discriminated
against the complainant, it could
not recommend that the employer
investigate the effects on other
female employees (unless they
were part of a multiple claim).
In an indirect discrimination case,
the tribunal cannot make a
recommendation if it is
satisfied that the ‘provision, criterion
or practice’ (PCP) which caused
the problem was not applied
with the intention of discriminating
against the complainant (EqA 2010,
s.124).
Can the court order an unenforceable
term in a contract to be
modified or removed?
An enforceable term in a contract
of employment is a term that
‘constitutes, promotes or provides
for treatment prohibited by the
Act’.
The county court or (in Scotland)
sheriff may order an unenforceable
term to be removed or modified
(s.143) on ‘the application of
a person who has an interest
in the contract’. But this is
rarely done because every person
who would be affected by the
removal or modification of the
term has to be given
notice of the application and
the opportunity to make
representations.
(This power does not apply to
any term that may breach the
Public Sector Equality Duty –
there are separate provisions on
enforcing the PSED.
10
Who can be a comparator for an
equal pay claim? Is it
possible to have a hypothetical
comparator?
Not for an equal pay claim -
there is a possibility that
a claimant could use a
hypothetical comparator if she was
subject to direct discrimination in
relation to pay, for instance,
if an employer said ‘I would
pay you more if you were
a man’. This would be a
discrimination claim (EqA, s.71(2).
Indirect discrimination claims in
relation to non-contractual terms can
have hypothetical comparators.
Are there circumstances where there
is no need for a comparator
in an equal pay case?
Only in limited circumstances.
To bring an equal pay case,
in certain circumstances, women
on maternity leave are not
required to have a male comparator
(EqA 2010, ss.72-76).
Secondly, a comparator is not
required where a discriminatory
provision derives from national law
(for example, an indirectly
discriminatory rule in the Teachers’
Superannuation Scheme), and a
statistical analysis demonstrates adverse
impact on one sex (Allonby
v Accrington and Rossendale College
and ors, 2004 ICR 1328, ECJ).
In most indirect discrimination claims,
the claimant must have a
comparator but she does not
necessarily have to show that a
‘provision, criterion or practice’
(PCP) of the employer is
causing the disadvantage – in some
cases, statistical evidence which
demonstrates adverse impact is
sufficient to establish prima facie
sex discrimination.
If the claimant has longer service
than the comparator and she
wins her equal pay case, what
happens to her pay?
Usually the claimant has more than
one comparator because there is
no guarantee at the outset
which ones will be found by
the tribunal to be doing equal
work with her.
In Evesham v North Hertfordshire
Health Authority and another (2000,
ICR 612, CA), the claimant’s
work was rated higher (under a
JE scheme) than the comparator’s
work but she was paid less.
However, her pay could only
be raised to the level of
his pay – this is the
effect of the modification of
the term in her contract to
be no less favourable (but not
more favourable) than the term
in his contract.
The Evesham case highlights the
importance of choosing the right
comparator/s. The claimant, a speech
therapist, cited a sole male
clinical psychologist as her
comparator who had much shorter
service than her and this was
reflected by the fact that he
was on a low point on
his payscale. If she had chosen
a clinical psychologist with
commensurate years of service to
her, she might have achieved a
higher rate of pay (provided,
of course, her job had been
rated as equivalent to his).
‘Same establishment’ and the EqA 2010
Part 2 cited the case of City
of Edinburgh v Wilkinson and
ors (2014 CHIS 27). On the
face of it, Wilkinson is an
unhelpful judgment which could
narrow the scope for ‘same
11
establishment’ claims. However this case
was taken under the Equal Pay
Act 1970 – the EqA 2010
is worded differently in respect
of these provisions.
There is also a new and (at
the time of writing) untested
provision in the EqA 2010,
section 80(3): ‘If work is
not done at an establishment, it
is to be treated as done
at the establishment with which
it has the closest connection’.
Having wider scope for ‘same
establishment’ claims could be
important if Brexit results in
closing off the Article 157 route
(‘same service’ claims).
What does ‘single source’ mean
and how does it affect Article
157 claims?
This section supplements Part 2 by
outlining the history of the
‘same service - single source’
litigation.
The ECJ ruled that Article 119
(now 157) permits equal pay
comparisons with persons employed
in the ‘same establishment or
service as the claimant’ (Defrenne
v Sabena 1976 ICR 547, ECJ)
whether public or private (Macarthys
Ltd v Smith, 1980 ICR672, EAT).
In Scullard v Knowles &
Southern Regional Council for Education
and Training (1996 IRLR 344),
the EAT permitted Ms Scullard,
a unit manager employed by
a (then) Training &
Education Regional Council, to name
as her comparators male unit
managers employed by other such
bodies, all of which were
independent of the Secretary of
State for Employment but funded
by the Department of Employment.
Initially, this judgment raised the
prospect that ‘same service’
claims might enable cross-employer
claims in local government. (The
1997 national single status agreement
did not prescribe national grades
– authorities were required to
carry out local grading and pay
reviews. This meant that it was
possible for men and women
employed by different authorities but
doing equal work to be paid
differently.) At the time, it
was also hoped that Article 157
claims might stop private contractors
from cutting the pay of their
ex-local authority employees. However,
Scullard was followed by a
clutch of judgments which have
limited the use of Article 157
to challenge pay inequality in
cross-employer cases.
The ‘same service’ argument was
deployed by UNISON in Lawrence
& others v Regent Office
Care Ltd and ors (2003 ICR 1092
ECJ). The claimants included female
school meals staff who transferred
from North Yorkshire County
Council to a private contractor.
They ended up working on less
favourable terms and conditions
than men still employed by the
Council whose jobs had been
‘rated as equivalent’ in value to
their jobs by the local
government Manual Workers’ job evaluation
scheme. The union argued that
even though the women were
no longer working for the
council but for a different
employer, they were entitled to
equal pay because they were
still working in the ‘same
service’. The ECJ held that
where differences in pay cannot
be attributed to a single
source, equal pay claims will
not be in scope of Article
141 (now 157). To put it
more simply, in the words of
the original tribunal’s decision,
‘the person who discriminates has to
be in control both of the
women’s wages and the
comparator’s wages’. In this case,
the employers argued successfully
that there must be a common
source from which the terms and
conditions of both the claimant
and comparator derive (as when
different employers are required
to apply the same collective
agreement, or where terms and
conditions have been laid down
by statute or a regulation).
Furthermore, it was argued that
unless the difference in pay
can be traced to a single
source, the employer who is
accused of sex discrimination (because
he pays women workers less
12
than the male comparator’s employer)
is not in a position to
explain the difference or to
explain why that difference is
objectively justified. The
Advocate-General’s opinion (adopted by
the ECJ) put it in this
way: ‘...Article 141 is
addressed to those who may be
held responsible for [the pay
difference] i.e. the legislature,
the parties to a collective
works agreement and the management
of a corporate group...On the
other hand, if differences in
pay arise [where] respective employers
are separately responsible for
the terms and conditions ...within
their own undertaking or
establishment, they cannot possibly be
held individually accountable for
any differences in the terms
and conditions ...between those
undertakings’.
If the women’s and the
comparators’ (different) employers were
party to the national agreement,
grading and pay would be
determined by local collective
agreements rather than a ‘single
source’, suggesting that claims
across authorities under Article 141
would be ruled out. Even if
the claim for equal pay was
in relation to a contractual
term derived from Part 2 of
the national agreement which is
binding on all NJC (or
SJC) authorities, individual employers
are responsible for pay disparity
and putting it right, not the
NJC/SJC.
The ECJ judgment in Lawrence
appears to severely limit scope
for comparisons between claimants
employed by a local authority
which has opted out of the
national agreements and comparators
employed by an NJC/SJC authority
(or vice versa).
Subsequent Article 157 cases confirmed
that the ‘single source’ test
sets a high bar for
claimants.
In Allonby v Accrington &
Rossendale College and ors (2004
IRLR 224 ECJ), the ECJ ruled
that a female lecturer employed
through an agency could not
claim equal pay with male
lecturers employed directly by the
College. Ms Allonby had been
employed originally as a part-time
lecturer on a series of
short term contracts. As a
cost-cutting measure, her contract was
not renewed and she was
re-engaged as a sub-contractor of
an agency, as a self-employed
person. She was paid on a
fee per assignment basis by
the agency. Her comparator was
paid by the College under
conditions determined by the
College. Her fee and some
other benefits were then reduced
compared with directly employed
lecturers. The fact that her fee
was influenced by the amount
the College paid the agency was
not held to meet the ‘single
source’ requirement – it was
‘not a sufficient basis for
concluding that the college and
ELS [the agency] constitute a
single source to which can be
attributed the differences identified
in Ms Allonby’s conditions of
pay and those of the male
worker paid by the college’.
Accordingly, her equal pay claim
failed.
In Dolphin and ors v Hartlepool
Borough Council and ors (EAT
0559/05), female support staff in
voluntary-aided schools, employed by
the governing bodies of those
schools, sought equal pay with
male workers employed by the
Council at different establishments.
The EAT upheld the tribunal’s
decision that the claimants could
not show they were in the
‘same service’ as the men by
virtue of there being a
‘single source’. Although the governing
bodies and the Council applied
the same pay scales, the
voluntary-aided schools were run by
the governing bodies as separate
entities and operated autonomously in
engaging staff as an employer
and being responsible for staff
terms and conditions. Consequently,
the Council was not the ‘single
source’ responsible for setting
their terms and conditions and
for restoring equality.
In Robertson & others v
Department for Environment, Food and
Rural Affairs (2005 EWCA Civ
138), the Court of Appeal upheld
a judgment of the EAT that
a group of male civil servants
were not entitled to compare
their pay with women civil
servants working in another
government department. Technically, they
had the same employer (the
Crown), but responsibility for
pay negotiation had been delegated
by the Crown to each
department or agency. The employment
tribunal had decided that the
Treasury had material control over
the terms and conditions to
such a degree that it could
properly be regarded as being a
‘single
13
source’. The EAT and the Court
of Appeal disagreed. The Court
held that working for the same
employer is not sufficient to
establish common employment for the
purposes of an Article 141
claim. Neither the Treasury nor
the Cabinet Office was involved
in negotiations within different
departments and there was no
coordination between the different sets
of negotiations. Therefore the
Crown could not be said to
be the body (the ‘single
source&rsquo