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