St Helens & Knowsley Hospitals NHS Trust v Brownbill & Ors

Under the Equal Pay Act 1970, comparison is made between discrete contractual terms of similar kind, rather than between total remuneration. A term providing enhanced payment for unsocial-hours work may therefore be compared with the corresponding term in a comparator’s contract, even where the woman’s basic rate is higher and the comparison may increase her overall pay advantage. The court must identify whether each provision has sufficient content to permit comparison and then compare the terms themselves.

Female healthcare assistants and receptionists brought equal-pay claims against an NHS Trust, relying on male drivers, porters and car-park attendants as comparators. The claims concerned enhanced payments for weekend, night and other unsocial-hours work before the NHS Agenda for Change restructuring.

The Employment Tribunal held that the unsocial-hours provisions formed part of basic pay and that the comparators’ enhancement formula could not be transposed to the women’s contracts. The Employment Appeal Tribunal, Mrs Justice Cox sitting alone, allowed the employees’ appeal and held that the enhanced-rate provisions were discrete contractual terms capable of comparison under section 1 of the Equal Pay Act 1970. The central issue before the Court of Appeal was whether those provisions had to be compared as contractual terms notwithstanding their effect on total pay.

1. Appeal dismissed. The Employment Appeal Tribunal was correct to hold that the contractual provisions for enhanced payment when unsocial hours were worked during normal working hours were discrete terms capable of comparison under section 1(2)(c)(i) of the Equal Pay Act 1970.
2. A contractual “term” is a distinct provision or part of a contract with sufficient content to allow comparison of the benefits it confers with a similar provision in the comparator’s contract. Once comparable provisions are identified, they must be compared directly under the statutory equality clause.
3. The case was not governed by Degnan v Redcar and Cleveland Borough Council. Degnan turned on particular contractual features, including artificiality and historical anomalies which disguised the reality of the pay elements. It did not create a general exception to the term-by-term approach.
4. The construction was consistent with the European jurisprudence on Article 157 TFEU and the requirement that equal pay apply to each element of remuneration. The focus is equality of terms, not equality of total pay actually received. The possibility of mutual enhancement or leap-frogging does not justify an overall comparison.
5. The case was remitted to the Employment Tribunal. The appropriateness of the comparators and the Trust’s genuine-material-factor defence under section 1(3) remained undecided.

• Court of Appeal (Civil Division) — dismissed the Trust’s appeal and remitted the case to the Employment Tribunal.
• Employment Appeal Tribunal — Mrs Justice Cox allowed the employees’ appeal, holding that the enhanced-rate provisions were discrete contractual terms capable of comparison under section 1 of the Equal Pay Act 1970 (ref UKEAT007410CEA).
• Employment Tribunal — held that the unsocial-hours provisions were terms relating to basic pay and that the comparators’ enhancement formula could not be transposed to the women’s contracts.