The Long March

Wilson v HSE has now found its way back into the English Courts some seven years after Mrs Wilson started her challenge to service related pay. The Court of Appeal has now in my view removed any doubt that such provisions are open to challenge. All that now remains is the rebuttable presumption that people who do a job for longer tend to be better at it and can be rewarded accordingly (service related pay).

What the Court of Appeal held was that the ‘serious doubts’ test handed down by the ECJ did not add a further hurdle to the Equal Treatment Directive and that the burden of proof remained the same as for any other challenge namely that “the Claimant has established facts from which it may be presumed that there has been direct or indirect discrimination....”

So it seems to me that the ‘serious doubts’ side step adopted by the ECJ has for the moment been downgraded. The test is now what is described as the lower test by Lady Justice Arden namely that the Claimant has to adduce evidence or point to evidence that is capable of establishing credible reasons for doubting the applicability of the general rule that service related pay is ‘automatically’ justified.

It should also be noted that Dinah Rose QC also succeeded on a new appeal point which in effect bypassed the Directive altogether. She argued that as service related pay was not specifically excluded by the 1970 & 1975 Acts the normal equal pay rules applied. This is probably the most important part of the judgment as it effectively removes Danfoss and Cadman from the reckoning and leaves the Claimant with a straightforward claim under the Equal Pay Act.

Why service related pay has become such a sacred cow is beyond me? If the employee deserves a different rate of pay from his female comparator then justify it. Things would be so much easier and Mrs Wilson would have won her case first time round 7 years ago!

http://www.bailii.org/ew/cases/EWCA/Civ/2009/1074.html

Peter D

What is a catering service?

There is not a simple answer to this as was discovered by Mrs Jones and Miss Ciliza. They brought a case against the transferee of a catering contract claiming that the TUPE Regs applied.

In this particular case a catering contract had been transferred because the old contract was losing money. The old service was described as a full canteen service involving the Claimants cooking as well as service. The transferee changed the service from being canteen based to being kiosk based with the Claimants simply selling pre-made sandwiches with some service. The question of course arose as to whether the same ‘activities’ were carried out by the new contractor?

The EAT upheld the Tribunals decision that there was no transfer and carried out a useful review of the service change provisions. The emphasis was as one might expect upon the activities not the fact that a grouping of employees has transferred.

This was decided relatively recently by HHJ Burke in Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08:

“The issue before the Tribunal can be simply expressed, namely, was there a relevant transfer under regulation 3(1) (b) of TUPE 2006. In the circumstances of this case two questions arose, namely were there activities which ceased to be carried out by CD on behalf of a client (MH) which were carried out instead by a subsequent contractor (MRL) on behalf of MH and were the conditions referred to in regulation 3(3) satisfied?”

The question then is simply a matter of fact for the Tribunal as to what similarities there are between the two activities; the important task for a Tribunal being a before and after snap shot of the activity in question.

It was also clear that simply labelling an activity in this case as ‘catering’ was not good enough. A more detailed analysis was required of the pre and post transfer activities. In this particular case the service had gone from being a full canteen service to a sales service of pre-packed foods which the Tribunal found was a wholly different operation.

What does this tell us? It helps us with how we should approach the service transfer provisions but is also demonstrates that there are limits to what is a ‘service’. Generalised labelling will not be sufficient for a service activity to survive a transfer. Tribunals will be looking at the specifics.

Metropolitan Resources Ltd v (1) Church Dulwich Ltd - in liquidation (2) Martin Cambridge & Ors [2009] UKEAT/0286/08
http://www.employmentappeals.gov.uk/Public/Upload/08_0286rjfhwwRN.doc

OCS GROUP UK LTD v JONES & CILIZA [2009] UKEAT/0038/09
http://www.employmentappeals.gov.uk/Public/Upload/09_0038fhwwCEA.doc

Peter D

Lecture Notes Part Two

The lecture notes on Disability Discrimination and Equal Pay have now been uploaded to the Chambers website. Please click on the link below.

Peter D

http://www.12cp.co.uk/furniture/cms/documents/Disability%20Discrimination%20.pdf

The transfer window has closed

I suppose with the transfer window having just closed I should try and make some kind of tenuous link between the start of the football season proper and the Court of Appeal decision in Gutridge & ors v Sodexo & anor [2009] EWCA Civ 729. However I can’t think of one so I will move quickly onto the Court of Appeals decision in this case.

The important bit is that the Court has confirmed that equal pay claims against transferees begin to run from the date of the transfer. This is a practical solution to what was potentially a very difficult issue for a transferee especially in relation to local government contracts where there are many thousands of potential claims arising out of single status. The problem was that many years after a transfer a transferee could have been faced with an equal pay claim which arose before the transfer and about which the transferee would have little or no knowledge (see Elias’s judgment in the EAT).

Although this is a practical solution Lady Smith’s dissenting judgment should be read. Although she saw the problem she came down on the employee's side. In fact the Equal Pay Act allows exactly that when you stay with the same employer it is simply the arrears that are limited by the six year time limit.The argument is persuasive as the Equal Pay Act is all about implying an equality clause into the contract and as the contract is transferred it is difficult to see why time should run from the transfer.

I believe what this case really comes down to is the application of the House of Lords judgment in Powerhouse Retail Limited v Burroughs and others [2006] UKHL 13. This is why it is unlikely that this is the end of the matter so watch out for a further appeal to the House of Lords or perhaps even an ECJ reference.

Peter D

http://www.bailii.org/ew/cases/EWCA/Civ/2009/729.rtf

http://www.bailii.org/uk/cases/UKHL/2006/13.html

Lecture Notes

I gave a lecture at the end of August covering Disability Discrimination and Equal Pay. Why is it that the Bar Council only allow you double the the delivery time as preparation time for CPD purposes? This lecture took me nearly 3 full days to research and write!

I am hoping to have the notes uploaded to the Chambers website in the next week or so. When it is done I will put the link up on the blog. The notes cover some old ground but also look at the the meaning of 'likely' in some more depth as well as a quick round up of recent equal pay decisions in the long running single status litigation.

Peter D

The Establishment

There are at present many thousands of equal pay claims being brought up and down the country against the NHS and local authorities. In the case below the key question that arose related to who the predominantly female school based staff could compare themselves with across the Council. In the end the question was what did ‘establishment' mean?

Dumfries & Galloway Council v North & Others UKEAT/0047/08 (see link at the end) concerned equal pay claims being brought by classroom assistants, support for learning assistants and nursery nurses employed by local authority. They sought to compare themselves with male manual workers based elsewhere, at depots and at a swimming pool, and employed as road workers, grounds men, refuse collectors, refuse drivers and a leisure attendant. There were also male manual workers employed by the local authority at schools (i.e. the same establishments as them), as caretakers, but the claimants did not seek to compare themselves with them.

The key issue in this case was whether or not the claimants and their chosen comparators were in the same employment for the purposes of section 1(2) (c) of the Equal Pay Act 1970. It was found that the Claimants and comparators were not in the same employment.

This is a useful judgment as it reviews the most recent and important decisions on the meaning of ‘establishment’ under S 1(6) Equal Pay Act 1970.

At paragraph 20 Lady Smith set out two propositions namely that:

• It should not be assumed that a woman employed at one establishment is in the same employment as a man employed in another just because they are employed by the same or associated employers.
• For a woman to compare herself to a man employed at a different establishment there must be such uniformity or commonality between the two employment regimes to make it a fair comparison.

This can be shown in two different ways:

a) A Claimant may demonstrate common terms and conditions (usually the same collective agreement)

Or

b) A Clamant may show that the women doing her class of job at establishment A are employed there on common terms and conditions and that men doing her comparator’s class of job at establishment B and any man actually employed or who would be employed to do that class of job at establishment A are, or would be, employed on terms and conditions that are common to them (although different from the women’s terms and conditions).

The North case falls into the second category of cases. What Claimants in the second category of cases have to show is that the male comparators could have been employed to do their job at the School.

What this meant was that as schools do not collect refuse or employ leisure attendants many of the comparators fell away as they could never hypothetically have been employed at schools! It is also worth noting that importance was placed on the schools requirement of advanced CRB checking of staff which did not apply to most of the comparators and the management of work by the Headteacher.

Peter D

http://www.employmentappeals.gov.uk/Public/Upload/EATS.0047.08.BIDumfriesGallowayvNorthFINALShowingAMENDMENTS(corrections).doc

The Pool

Seems to me that we have been sweating over nothing and all our clever arguments over what Rutherford may or may not have said about pools don’t amount to a hill of beans. Yet again someone has noticed that Baroness Hales might actually know what she is talking about when it comes to discrimination!

The Court of Appeal have revisited the question of what the relevant pool should be in an indirect discrimination claim. Somerset County Council v Pike [2009] EWCA Civ 808 is helpful as it explains Rutherford (no mean feat you may think). What Kay LJ explains is that lawyers keep on misreading the majority decision of the House of Lords Rutherford. He identifies that Judge McMullen had it right when he refers to Baroness Hale’s reasoning in Rutherford as this was approved by the majority.

"76 … it matters not that there are other men and women who have left the workforce at an earlier age and are thus uninterested in whether or not they will continue to be protected. The people who want the protection are the people who are still in the workforce at the age of 65 …

77 … in my view we should not be bringing into the comparison people who have no interest in the advantage in question.

78. This approach, defining advantage and disadvantage by reference to what people want, chimes with [Canadian authority] …

82. The common feature is that all these people are in the pool who want the benefit – or not to suffer the disadvantage – and they are differentially affected by a criterion applicable to that benefit or disadvantage. Indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question … "

So we are back to a pool that suitably tests the particular type of discrimination complained of. Helpful?

Probably as it least sets boundary markers even if it does not tells us exactly where the boundary is. Perhaps the only people who have really had any doubts are lawyers representing Respondents who as in the present case knew that they were down on disparate impact if the correct pool was adopted.

Peter D

Somerset County Council v Pike [2009] EWCA Civ 808:
http://www.bailii.org/ew/cases/EWCA/Civ/2009/808.html