Redcar & Cleveland Borough Council v Bainbridge & Ors

For equal pay purposes, a job evaluation study does not prevent comparison with a male comparator whose job received a lower value, where the claimant’s job received a higher value. Sections 1(2)(b) and 1(5) of the Equal Pay Act 1970 must be construed purposively and consistently with the Community principle of equal pay for work of equal value. The statutory language may be moulded so that “rated as equivalent” includes work rated higher. A claimant should not be forced into the more costly and time-consuming equal-value route where an existing job evaluation study already demonstrates the relevant disparity, subject to the employer’s statutory defence under section 1(3).

Female catering employees and care workers employed by Redcar and Cleveland Borough Council brought equal pay claims against male comparators, including road sweepers, gardeners and refuse collectors. A job evaluation study placed the women’s jobs in higher grades than some of the men’s jobs. The Employment Tribunal held that a claimant could rely on a comparator in a lower grade where the claimant’s work had in fact been given a higher value.

The Employment Appeal Tribunal upheld that conclusion in its judgment dated 15 November 2006, UKEAT/0135/06/LA, and granted permission to appeal. The Council appealed on two grounds, but the pay-protection issue was adjourned for consideration with the anticipated appeal in Middlesbrough Borough Council v Surtees. The issue before the Court of Appeal was whether the statutory RAE route permitted comparison with a man whose job had been placed in a lower grade by the job evaluation study.

1. Appeal dismissed. The Court of Appeal agreed with the Employment Appeal Tribunal that a woman may pursue a claim under section 1(2)(b) of the Equal Pay Act 1970 by comparing her work with that of a man whose job was placed in a lower grade, where the job evaluation study gave the woman’s job a higher value.
2. Sections 1(2)(b) and 1(2)(c) implement the same Community principle of equal pay for equal work or work of equal value. They are mutually exclusive routes, but section 1(2)(b) is not a purely domestic remedy insulated from that principle. The reasoning in Murphy v Bord Telecom Eireann [1988] ICR 445 was applicable to the RAE route, and the analogous approach in SITA UK Ltd v Hope UKEAT/0787/04/MAA was not wrongly decided.
3. The legislation had to be given a purposive construction. Reading section 1(5) as referring to a job given “an equal value or ... a higher value”, and to a job that “would have been given an equal value, or ... a higher value” but for a sexually discriminatory evaluation system, brought section 1(2)(b) into conformity with the relevant Community obligation. The adjustment was within the permissible process of statutory moulding and did not require disapplication. This approach was supported by Autologic Holdings plc v Inland Revenue Commissioners 2005 UKHL 54 and was comparable to the approach in Litster v Forth Dry Dock and Engineering Co Ltd [1989] IRC 341.
4. The Council had conceded that, if the comparison was legally permissible, it could not establish a genuine material factor other than sex under section 1(3). Wilson LJ and Mummery LJ agreed with Maurice Kay LJ.

• Court of Appeal (Civil Division) [2007] EWCA Civ 929: dismissed the Council’s appeal on the RAE issue.
• Employment Appeal Tribunal UKEAT/0135/06/LA: upheld the Employment Tribunal’s conclusion that a lower-grade male comparator could be used where the claimant’s job had received a higher value in the job evaluation study.
• Employment Tribunal: held that reliance on a lower-grade comparator was permissible. The Council’s separate pay-protection ground was not determined in this appeal.