Workers in “same employment”

Supreme Court

North and  v Dumfries, Equality and Human Rights Commission intervening

This is an important decision of the Supreme Court affecting equal pay rights.

Judgment June 26, 2013

When considering whether men who worked at a different location were in the “same employment” as women who were claiming sex discrimination, the hypothesis was that the chosen male comparators be transferred to do their present jobs at the location where the women claimants worked and there was no requirement that there be a real possibility that such a transfer would occur.

The Supreme Court so held in allowing an appeal by the claimants, Mrs. Elaine North and others, following a pre-hearing review, allowing the claimant’s equal pay claim to proceed on the grounds that the claimants were “in the same employment” as their male comparators within the meaning of section 1(6) of the Equal Pay Act 1970 (as amended by paragraph 1(1)

The  judges court said that the claims were brought by 251 classroom assistants, support for learning assistants and nursery nurses employed in the council’s schools. They were employed under the terms contained in a national collective agreement.

They wished to compare themselves with a variety of manual workers employed by the same council, as groundsmen, refuse collectors, refuse drivers and a leisure attendant, who were employed under a different collective agreement The claimants argued that the tribunal should not speculate about the adjustments to the male comparators’ present terms and conditions which might be made in the unlikely event that they were transferred to the claimants’ workplace.

The hypothesis was that the comparators were transferred to do their present jobs in a different location. The question under section 1(6) of the 1970 Act was whether in that event, however unlikely, they would remain employed on the same or broadly similar terms and conditions to those applicable in their current place of work.

The object of the legislation was to allow comparisons to be made between workers who did not and never would work in the same workplace. An example might be a manufacturing company, where the (female) clerical workers worked in an office block, whereas the (male) manufacturers worked in a factory.

The judges accepted those arguments. There was no hint of a “real possibility” or “feasibility” test in the leading case of British Coal Corporation v Smith ([1996] ICR 515). Both added an unwarranted gloss to the wording of the subsection as interpreted in that case.

To adopt such a test would be to defeat the object of the exercise. That was not just a matter of preventing employers from so organising their workplaces that the women worked in one place and the men in another. There might be perfectly good reasons for organising the work into different places. But the object of the legislation 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 stood to reason, therefore, that some very different jobs which were not or could not be carried out in the same workplaces might nevertheless be rated as equivalent or assessed as having equal value.

It was not the function of the “same employment” test to establish comparability between the jobs done. That comparability was established by the “like work”, “work rated as equivalent” and “work of equal value” tests under section 1(2).

Further, such a construction of section 1(6) was more consistent with the requirements of European Union law than was the construction favoured by the council.

Solicitors: UNISON Legal Services, Glasgow; Head of Legal and Administrative Services, City of Edinburgh Council, Edinburgh for Legal Services, Dumfries and Galloway Council, Dumfries; Equality and Human Rights Commission.