Enderby v Frenchay Health Authority (No 2) (Evesham v North Hertfordshire Health Authority, Hughes v West Berkshire Health Authority)

Once a woman establishes that her work is of equal value to that of an identified male comparator, the Equal Pay Act 1970 requires a term-by-term comparison of the contracts. Less favourable similar terms must be modified, and missing beneficial terms must be included. The comparison is with the chosen comparator as he was at the relevant date, not with a generic job or hypothetical colleague. The woman enters the comparator’s incremental scale at his then-current point and receives the same contractual progression. Experience already reflected in the equal-value assessment cannot be counted again to place her at a higher point. Equality of treatment does not require terms more favourable than the comparator’s, and an employer cannot defend a less favourable term by pointing to the overall package.

These conjoined appeals arose from equal-pay claims by Dr Pamela Enderby, Margaret Evesham and Angela Hughes against their respective health authorities and the Secretary of State for Health. The Industrial Tribunal found that the applicants’ work was of equal value to that of their chosen male comparators and, at the remedy stage, directed that their contracts should reflect the comparators’ pay scales at the points then reached, together with subsequent progression.

The Employment Appeal Tribunal dismissed the appeals. The applicants argued that they should enter the relevant scales at points reflecting their own longer service. The central issue before the Court of Appeal was whether the equality clause required equal treatment with the chosen comparator as he stood at the relevant date, or a higher salary reflecting the applicant’s own length of service.

1. Disposition. Roch LJ delivered the principal judgment. Ward LJ agreed and gave additional reasons. Gage J agreed with both judgments. The appeals were dismissed with costs.
2. Under section 1(2)(c) of the Equal Pay Act 1970, once equal value with the chosen comparator is established, the contracts must be compared term by term. A less favourable term of a similar kind in the woman’s contract must be modified so as not to be less favourable. A beneficial term in the comparator’s contract which has no corresponding term must be included.
3. The comparison is individual and date-specific. It concerns the work actually performed by the applicant and the chosen comparator at the relevant date, rather than generic occupations or hypothetical comparators. The applicant therefore mirrors the comparator’s position on his incremental scale at that date and receives the same contractual progression thereafter.
4. The relevant terms included the basic salary, scale, number and amount of increments, and incremental date. The fact that length of service is a gender-neutral criterion does not prevent the resulting contractual treatment from being less favourable. Ward LJ relied on the rebuttable presumption of sex discrimination arising from less favourable treatment in the circumstances described in Marshall and others v Glasgow City Council and others.
5. The equal-value assessment had materially reflected the applicant’s experience and professional development. Placing her at a higher incremental point would double count that experience and give her pay associated with work whose equal value had not been established. The equality clause did not require a term to become more favourable than the comparator’s, and the employer could not rely on the overall package of terms. The Court applied the approach in Hayward v Cammell Laird [1988] ICR 464.
6. The contractual modifications operated from the date of comparison. Retrospective enhancement based on the applicant’s own service would not mirror the comparator as he was at the relevant date. The applicants were entitled to the comparator’s salary at that date and the same subsequent contractual increments.

• Court of Appeal: Appeals from the Employment Appeal Tribunal were dismissed with costs. Permission to appeal to the House of Lords was refused.
• Employment Appeal Tribunal: Appeals from the Industrial Tribunal’s remedy decision of 29 October 1997 were dismissed.
• Industrial Tribunal: The applicants were found to have performed work of equal value to that of their chosen male comparators. The Tribunal directed contractual modifications to reflect the comparators’ pay scales and progression.