Definition of the same employment in Equal Pay cases (again)

A female bringing an equal pay claim must use male pay comparators who are in “the same employment” as her. There have been a number of recent cases in Scotland exploring the precise meaning of “the same employment”, some of which have been the subject of updates on this website. Another recent case, an English one this time, further examines the issue.

To recap:

• Section 1 of the Equal Pay Act 1970 entitles a woman to equal pay with a man “in the same employment” where she is employed on like work, work rated as equivalent or work of equal value. The same section clarifies the meaning of “the same employment “ by providing that this entitlement applies where the woman works for the same employer at a different establishment, as long as it is one at which common terms and conditions of employment are observed generally or for employees of the relevant class.

• In April 2009, the Scottish Employment Appeal Tribunal , in the case of Dumfries and Galloway Council v North and ors, ruled that employees working for the Council at two different locations but in different jobs and under separate collective agreements should not be regarded as being in the same employment. Only if there was a real possibility of a male comparator being transferred to the female claimant's establishment to carry out his job would it be possible for the female claimant to seek to establish a claim based on common terms and conditions of employment.

• In April 2010, in the case of City of Edinburgh Council v Wilkinson and ors, the Scottish EAT took a very different view, ruling that female claimants and their male comparators who were employed by a city council were employed 'at the same establishment' for the purposes S.1(2) of the Equal Pay Act , even though the claimants and comparators were employed at different locations within the geographical area covered by the council. On this basis, it was not relevant to the claimant’s right to bring a claim whether or not there were common terms and conditions. But, in any case, the EAT held that, even if it had not been possible to show that the claimants and comparators were employed at the same establishment, the claimants were nonetheless entitled to found their equal pay claim on the basis that they would have been employed on 'common terms and conditions' as their comparators if - hypothetically - they had been employed at the same establishment.

In the most recent case, White v Burton's Foods Ltd, the English EAT has ruled that a tribunal was entitled to hold that the claimant could not cite comparators as being in the same employment when they worked at different locations and where their holiday pay, notice pay provisions, disciplinary and grievances procedures, collective bargaining arrangements were all different, with no over-arching company handbook.

Mrs White worked for Burton’s Foods Ltd as a Production Planning Manager at their Blackpool site. She brought an equal pay claim citing existing and former Production Planning Managers at other sites as comparators who were in the same position as her in terms of the company’s hierarchy. Although all the sites were under the common ownership of Burton’s, there had been no steps taken to harmonise terms and conditions either collectively or through individual consultation and variation, save with the exception of the introduction of a standardised appraisal system. On this basis, a the Tribunal ruled that Mrs White and her comparators were not in “the same employment” because of the Equal Pay Act requirement that , for this to be the case, common terms and conditions of employment must be observed either generally or for employees of the relevant classes

Mrs White appealed to the EAT, on the grounds that the employment of the comparators was broadly similar and therefore satisfied the Section 1 test. The EAT rejected her appeal . It ruled that the tribunal had correctly followed the House of Lords guidance in British Coal Corporation v Smith [1996] in considering whether the comparators could be regarded as being in “the same employment”. The fact that holiday pay, notice pay provisions, disciplinary and grievances procedures, collective bargaining arrangements for the comparators at other establishments were different to the provisions in Mrs White’s employment contract, and that there was no over-arching company handbook, meant that she could not be considered as being in the same employment.

The main concern for local authorities will be to determine what is the position if the woman and the man work for the same local authority employer but at different locations, in different jobs and under different collective agreements – for example, if the woman works in one location where national terms and conditions apply, but the man works at another location under local terms and conditions, which include very different provisions on leave, premium rates, and notice provisions? Can the woman still claim an equal pay entitlement?

The least risky approach is to be guided by the Scottish EAT ruling and to assume that all the Council’s employees are employed 'at the same establishment' for the purposes S.1(2) of the Equal Pay Act , even though they are employed at different locations within the geographical area covered by the council. If this is the case, then the issue of different terms and conditions will not arise.

However, this assumption would obviously maximise the Council’s exposure to potential equal pay claims.

It may still be possible to seek to defeat an equal pay claim using the arguments deployed in the White v Burton's Foods Ltd case, particularly if the Council covers a large geographical area, the establishments in question are a long way apart and very different terms and conditions apply. The finding in the City of Edinburgh Council v Wilkinson and ors that, for the purposes of equal pay claims, all the City Council’s employees should be regarded as working at the same establishment was based on the facts of the case, with all the premises concerned located within a relatively small geographical area. It is possible that the courts might take a different view if the premises were located at opposite ends of a large County.

But seeking to resist the validity of a claim on the basis of geography alone may still prove difficult, given the ruling in the City of Edinburgh Council v Wilkinson and ors case that the claimants were entitled to found their equal pay claim on the basis that they would have been employed on 'common terms and conditions' as their comparators if - hypothetically - they had been employed at the same establishment.

There may be yet further cases which help to make the position definitive. In the meantime, it must be stressed that the cases above relate only to whether the employees have a right to bring an equal pay claim – not to whether or not such a claim will succeed.

Back to home page