Brownbill v St Helens and Knowsley Teaching Hospitals NHS Trust

Equal pay claims require comparison of the relevant contractual terms, rather than an aggregate comparison of total remuneration. A discrete term providing enhanced pay for unsocial hours worked during normal contractual hours may be compared with a similar term in a comparator’s contract. The fact that a claimant receives greater overall pay does not defeat the claim. The approach must preserve transparency and identify discrimination in each component of remuneration. Degnan does not establish a general rule requiring all payments for normal working hours to be aggregated where the contractual provisions are distinct.

Five NHS employees appealed from a pre-hearing review decision of the Newcastle Employment Tribunal dated 24 November 2009. They claimed that, before 1 October 2004, contractual terms governing enhanced payments for weekend, night and other unsocial-hours working were less favourable than corresponding terms applicable to male comparators.

The Employment Judge found that the relevant provisions were distinct and capable of comparison, but treated the enhancements as part of a single payment for normal working hours. Because some claimants received greater aggregate pay, he concluded that there was no less favourable term. The central issue was whether the discrete enhancement terms had to be compared separately under section 1(2) of the Equal Pay Act 1970.

1. Appeal allowed. The Employment Judge applied the wrong legal test. The decision was substituted, and the cases were remitted to the Employment Tribunal for further determination.
2. Under section 1(2) of the Equal Pay Act 1970, a term is a distinct provision or part of a contract with sufficient content to permit comparison with a similar provision in the comparator’s contract. The Tribunal must compare the relevant term, not the contracts or remuneration packages as a whole.
3. The Judge had correctly found that the contractual clauses providing enhanced rates for unsocial hours were distinct provisions capable of comparison. He erred by subsequently treating them as part of a single term for payment during normal working hours and by aggregating the different components of pay.
4. The decision in Hayward v Cammell Laird Shipbuilders Ltd [1988] AC 894 required separate comparison of the relevant contractual terms. The possibility that separate comparison may produce mutual enhancement or that a claimant may be better paid overall does not alter that conclusion. Any genuine material-factor justification remained to be considered under section 1(3).
5. Degnan and Others v Redcar and Cleveland Borough Council [2005] IRLR 615 turned on its particular facts, including concessions and findings concerning the nature of the bonus and attendance allowance. It did not lay down a general aggregation rule and was distinguishable.
6. The European equal-pay authorities were consistent with item-by-item comparison, because aggregation may obscure discrimination and undermine transparency and effective judicial review.

• Newcastle Employment Tribunal: Following a pre-hearing review, judgment dated 24 November 2009 held that the claimants could not rely on the comparators’ formula for enhanced unsocial-hours pay.
• Employment Appeal Tribunal: Allowed the appeal, substituted the correct decision, and remitted the cases for further determination.