White v. Burton's Foods Ltd

For the purposes of Equal Pay Act 1970, whether employees at different establishments are in the same employment depends on a broad, common-sense comparison of their terms and conditions. The tribunal must decide whether common terms are observed generally or for the relevant class; it need not examine each comparator separately or treat every similarity as significant. Differences in holiday pay, notice provisions, pay structure, disciplinary and grievance procedures, collective bargaining, human resources arrangements and applicable handbooks may justify a finding that terms are not broadly similar. An appeal lies only for an error of law. A perversity challenge requires an overwhelming case showing that no reasonable tribunal, properly directing itself, could have reached the conclusion.

The claimant, a Production Planning Manager at the respondent's Blackpool site, brought an equal pay claim under section 1 of the Equal Pay Act 1970, comparing her pay with production planning managers at the respondent's Morton and Llantarnam sites.

At a preliminary hearing, the Employment Tribunal held that she was not in the same employment as the comparators for section 1(6), because their terms and conditions were not broadly similar. The claimant appealed, alleging an error in the application of section 1(6) and perversity. The central issues were the proper approach to comparison and whether the tribunal's conclusion was legally or factually untenable.

1. Appeal dismissed. The Employment Tribunal had directed itself correctly and was entitled to conclude that the claimant and the relevant comparators were not employed under broadly similar terms for section 1(6) of the Equal Pay Act 1970.
2. The governing approach was the broad common-sense comparison described by Lord Bridge in Leverton v Clwyd CC [1989] ICR 33 and by Lord Slynn in British Coal Corporation v Smith [1996] ICR 515. Whether common terms and conditions are observed is ordinarily a question of fact for the tribunal, provided it directs itself correctly in law.
3. The Employment Judge was entitled to rely on significant differences in holiday pay, notice pay, pay structure, disciplinary and grievance procedures, collective bargaining arrangements and the absence of an overarching company handbook. The fact that the sites were under common ownership did not establish common terms. Similar hours and statutory entitlements, and a common monthly pay period, were insufficient to outweigh the differences.
4. There was no requirement to consider each comparator separately rather than adopting a global assessment. The statutory question could properly be assessed by considering the employment arrangements across the relevant sites.
5. The perversity challenge failed. Applying the threshold stated by Mummery LJ in Yeboah v Crofton [2002] IRLR 634, the decision came nowhere near showing that no reasonable tribunal, properly appreciating the law and evidence, could have reached it.

The appeal was therefore dismissed.

• Employment Tribunal: At a preliminary hearing on 22 September 2009, held that the claimant was not in the same employment as her comparators for section 1(6) of the Equal Pay Act 1970 and dismissed the claim.
• Employment Appeal Tribunal: Dismissed the appeal on 6 July 2010.