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
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