Morgan v Middlesbrough Borough Council

Under section 1(4) of the Equal Pay Act 1970, like-work requires a two-stage inquiry. The work must first be of the same or broadly similar nature. Any differences must then be assessed for practical importance in relation to employment terms and conditions, having regard to their frequency, nature and extent.

Broadly similar job descriptions do not compel a finding of like-work. Differences in actual functions, scale, routine clerical duties, strategic responsibility and financial work may justify a finding that the work is not like-work. A person’s skills and experience may assist in identifying the nature of the job, but do not alone establish different work.

Angela Morgan, a primary school administrator, brought an equal pay claim under section 1 of the Equal Pay Act 1970. She compared her terms with those of Mr Mell, a part-time administrator employed throughout the year at a larger secondary school.

The Employment Tribunal found that the work was not like-work, principally because Mrs Morgan performed more routine and term-time-related duties, while Mr Mell had a more strategic and managerial financial role. The Employment Appeal Tribunal, by a majority, allowed Mrs Morgan’s appeal, set aside the decision and remitted the like-work issue. The council appealed, and Mrs Morgan brought a cross-appeal concerning evidence relating to another employee. The central issue was whether the Tribunal had erred in law or failed to give sufficient reasons.

1. Appeal allowed. The Employment Appeal Tribunal’s order was set aside and the Employment Tribunal’s decision was reinstated. The respondent was ordered to pay the appellant’s costs, subject to detailed assessment if not agreed.
2. Lord Justice Hooper held that the statutory inquiry under section 1(4) of the Equal Pay Act 1970 has two stages. The claimant must first establish that the work is the same or broadly similar in nature. If that is established, the employer must show that differences between the work are of practical importance in relation to terms and conditions. The frequency, nature and extent of those differences must be considered. The legal burden remains on the claimant at the first stage, with a practical and evidential burden on the employer at the second.
3. The Employment Tribunal was entitled to find that the work was not like-work. Although the primary functions were similar, Mrs Morgan worked in a much smaller school and performed substantial routine clerical and term-time duties. Mr Mell’s work was more strategic and managerial, involved greater financial and contractual responsibility, and was performed in a larger school. Like-work is a question of degree, and similar job descriptions do not determine the issue.
4. The references in the Tribunal’s factual findings to different hours and to Mr Mell’s previous experience did not disclose a material misdirection. The reference to hours was not carried through into the Tribunal’s conclusions. Skills and experience may be relevant in understanding the nature of the job assigned, although they do not by themselves establish that the work is different.
5. The cross-appeal failed. The Tribunal was not required expressly to address evidence about another employee whose work was materially different and therefore could not assist with the comparison between Mrs Morgan and Mr Mell. Lord Justice Dyson and Lord Justice Brooke agreed.

• Court of Appeal (Civil Division): [2005] EWCA Civ 1432 — allowed the council’s appeal, set aside the Employment Appeal Tribunal’s order and ordered costs.
• Employment Appeal Tribunal: by a majority, allowed Mrs Morgan’s appeal, set aside the Employment Tribunal’s decision on the comparison with Mr Mell and remitted that issue for rehearing.
• Employment Tribunal: found that Mrs Morgan was not employed on like-work with Mr Mell.