Robertson & Ors v Department for Environmental Food & Rural Affairs

For an equal-pay comparison under article 141, differences in pay must be attributable to a single source: a body responsible for the inequality and capable of restoring equal treatment. A common employer is neither necessary nor sufficient.

The inquiry concerns the body that actually sets the relevant terms and conditions. A legal power retained by a delegating authority, or its theoretical ability to revoke a delegation, does not make it the single source where that power has not been exercised. Where separate government departments independently negotiate and determine pay, employees of those departments cannot make a cross-departmental comparison merely because they are all employed by the Crown.

Six male civil servants employed in DEFRA sought to compare their pay with that of two female civil servants employed in another government department, DETR. All were Crown employees, but the departments independently determined their pay and conditions under delegated powers. It was assumed for the preliminary issue that their work was of equal value.

The employment tribunal permitted the comparison. The Employment Appeal Tribunal reversed that ruling in a decision reported at [2004] ICR 1289. The employees appealed.

The central questions were whether common employment by the Crown was sufficient for comparison under article 141 of the EEC Treaty, and whether the Crown constituted the single source responsible for pay in both departments.

1. Appeal dismissed. Article 141 requires differences in the pay of workers performing equal work or work of equal value to be attributable to a single source. The relevant source is the body responsible for the inequality and capable of restoring equal treatment. The approach is of general application and is not confined to cases involving different employers.

2. The bare fact that the claimant and comparator have a common employer is insufficient. Common employment is neither a necessary nor a sufficient condition of comparability. The court must identify the body actually responsible for setting the relevant terms. The formal legal identity of the employer does not determine that question.

3. The Crown was not the single source of the pay received by civil servants in DEFRA and DETR. Following genuine delegation under the Civil Service (Management Functions) Act 1992, individual departments independently negotiated and agreed most terms and conditions. There was no central negotiation, coordination or approval of settlements. The resulting divergence in departmental pay reflected the departments’ exercise of their own discretion.

4. The Crown’s possible retention of concurrent legal power did not make it responsible for the actual pay decisions. A theoretical power which had not been exercised could not satisfy the practical inquiry required by Lawrence. Nor did the possibility that the Minister might later revoke the delegation alter the existing allocation of responsibility. Revocation would create a new situation only when it occurred.

5. DEFRA was the source responsible for the applicants’ pay, while DETR was responsible for the comparators’ pay. There was therefore no single body to which both sets of terms could be attributed. No reference to the Court of Justice was necessary because the single-source approach was clear and its application to the facts was for the national court.

1. Court of Appeal (Civil Division): Dismissed the civil servants’ appeal and affirmed the Employment Appeal Tribunal’s ruling. Permission to appeal was refused.
2. Employment Appeal Tribunal: Allowed DEFRA’s appeal, overturned the employment tribunal’s ruling and held that the proposed cross-departmental comparison was unavailable; reported at [2004] ICR 1289.
3. Employment tribunal: Determined the preliminary issue in favour of the applicants and approved their choice of comparators.