A historic leap forward for equal pay claimants?
27 June 2013
Dumfries and Galloway -v- North [2013] UKSC 45 – Read judgment
Yesterday’s much heralded equal pay ‘victory’ in the Supreme Court (see BBC Report) undoubtedly will be good news for the specific female claimants in the case who seek to vindicate their European Union rights to equal pay.
The female claimants do so by comparing their pay with male colleagues working in entirely distinct parts of the same local authority (being Dumfries and Galloway Council) but arguably on common terms and conditions of employment (often referred to as the ‘same employment’ test).
However, in legal terms, arguably the unanimous Judgment delivered by Lady Hale in the Supreme Court is not quite so revolutionary. Many practitioners, outside Scotland at least, had anticipated its outcome.
Summary of the facts
The women mainly were engaged in teaching support roles and the men were engaged in traditionally male work areas such as refuse collection.
The question of whether a female claimant works in the ‘same employment’ as a higher paid male colleague is the starting point if she wishes to achieve equal pay to that male colleague (often referred to as a ‘comparator’): see section 1(6) of the Equal Pay Act 1970 (now section 79 of the Equality Act 2010).
Even once the same employment test is established there remain a number of hurdles for claimants and defences for a local authority before compensation for arrears of pay can be ordered. These matters return to the Employment Tribunal to determine in the Dumfries and Galloway case.
Controversy in the Appeal
The appeal considered the correct approach to the test of ‘same employment’.
In essence, the question was whether the female claimants had to establish merely that if (on a purely hypothetical basis) their male comparators worked along side them, the male comparators would be on the same terms and conditions of employment, or whether, the female claimants had to show that there was a ‘real possibility’ of the male comparator actually working in the same establishment as the female claimants.
In this context, ‘common terms and conditions of employment’ does not require identical or even broadly similar terms and conditions of employment but rather merely that they emanate from a single source, in this case the same local authority.
The Supreme Court found that the true test for ‘same employment’ was to be found in the words of the statute; anything more was an impermissible ‘judicial gloss’ on the statute. By judicial gloss, the Supreme Court meant that Judges had imported into the test an additional element of their own, arguably turning into a new test altogether. The Supreme Court found that the addition of a requirement of ‘real possibility’ to the words of the statute was just such an impermissible judicial gloss.
However, just such a ‘judicial gloss’ has been permitted in employment law; in for example, the band of reasonable responses test for unfair dismissal, which does not appear in the words of section 98(4) of the Employment Rights Act 1996. Judicial activism of this type is less common in discrimination law, which must fully implement European Union law. A key concern for Lady Hale in reviewing the domestic approach to the ‘same employment’ test, including the requirement of showing a ‘real possibility’ was whether that application of the test gave full effect to European directives from which equal pay derives; the Supreme Court was concerned that the gloss derogated impermissibly from the equal pay directive.
Analysis
It should be noted that the ‘same employment’ test had given rise to greater confusion in Scotland than in the rest of Britain where many equal pay practitioners, advising local authorities, had anticipated the decision in the Supreme Court and suggested that caution should be deployed in assessing same employment.
Specifically, in the Scottish context, initially Mrs Justice Smith (as she was then) in the Employment Appeal Tribunal (in the current case – see Dumfries and Galloway Council -v- North [2009] UKEATS/0047/08/BI) had considered, applying a gloss on the statute, that it was necessary for female claimants to prove that there was a ‘real possibility’ of their male comparator working alongside them. However, in the latter case of Edinburgh City Council -v- Wilkinson [2009] UKEAT 0062/08/0710, Lady Justice Smith doubted her own application of the test.
In Dumfries and Galloway -v- North, before the Supreme Court, Mr Tuscott QC representing the local authority argued that the ‘real possibility’ test could be recast as the less onerous test of ‘feasibility’.
Perhaps predictably, Lady Hale (giving the Judgment of the Supreme Court) could not detect a difference in this distinction.
There may some scope for claimants to cast their net wider in a search for comparators after Dumfries and Galloway Council -v- North, but Lady Hale refused to speculate on the future application of the test, as clarified by the Judgment, beyond the local authority context provided by the Appeal, for example to the Civil Service (see paragraph 41).
Link to Author – Lauren Godfrey, 1COR
This blog is run by 
“Mrs Justice Smith (as she was then)”
The wasn’t then, and she never has been. As can be seen from both case reports linked to, she was and is simply Lady Smith. When appointed to the bench of the High Court and Court of Session, Scottish judges are known as the Hon Lord (or Lady) x, a courtesy title. They do not though receive knighthoods, as English judges of equivalent rank do. When raised to the Appeal Court and Inner House, as appelate judges, they become privy counsellors and are known as the Hon Lord (or Lady) x.
She has also never been “Lady Justice Smith”.
Sorry – the final words of the penultimate sentence should read “the Rt Hon Lord (or Lady) x.”
“The women mainly were engaged in teaching support roles and the men were engaged in traditionally male work areas such as refuse collection.”
If I were working as a refuse collector, I’d immediately start applying to switch jobs to a teaching support role at this point. I’d apply every year. I’d be watching very, very carefully, the recruitment process, and counting the male and female staff in teaching support roles. After a certain time, I’d be accusing the employer of discrimination against male applicants for teaching support roles, and saying that this was because the employer regarded, consciously or unconsciously, the dirty, hard work done outdoors in all weathers of refuse collection as “traditionally male”, and the enjoyable, comfortable, easy indoor work in teaching support roles to be “traditionally female”.
The only thing that would ever induce me to work as a refuse collector, if I had the chance to work in a teaching role instead, would be better pay.
This is not a victory for women. It is a victory for attempting to buck the market, and a recipe for lawsuits galore, whilst the rubbish piles up in the street. Who, in their right mind, whether male or female, will henceforth apply for jobs collecting refuse, when they now have the chance to apply for jobs supporting teaching that pays just as well?
I must read the judgment. I need a good laugh.
I think this is a definite leap forward, but it displays a degree of modernisation and simplicity by the court, generating a positive outlook for manoeuvrability on a jurisprudential basis. However, undoubtably this new judicial gloss as it has been called, appears in fact to be nothing judicial at all, in the sense this judgement represents what I deem to be the greatest infiltration of the European directives in this area, demonstrating positive sociomoral common law improvement. Conclusively, the point to take from this is we can see the courts adopting a more European friendly approach jurisprudentially, but this can consequently see the famous democratic deficit that the European jurisprudence can be seen to create, only this time on a case law level.