North and others v Dumfries and Galloway Council (Scotland)

Where an equal pay claimant and comparator work at different establishments, the common-terms inquiry asks whether the comparator would retain the same or broadly similar terms if hypothetically employed to perform the comparator’s present job at the claimant’s establishment. The claimant need not show that this transfer is realistic, feasible or likely.

The inquiry identifies the terms available for comparison. It must not become a proxy for deciding whether the work is comparable or whether a material factor other than sex justifies the difference. Its limited purpose is to exclude cases in which geography materially determines employment terms. A single employer capable of correcting the inequality will ordinarily constitute the single source required by European Union equal pay law.

The appellants were 251 predominantly female classroom assistants, support-for-learning assistants and nursery nurses employed by a local authority in its schools. They sought equal pay comparisons with male groundsmen, refuse workers, drivers and a leisure attendant employed by the same authority at depots or a swimming pool under different collective terms.

The employment tribunal held that the parties were in the same employment under section 1(6) of the Equal Pay Act 1970. The Employment Appeal Tribunal allowed the authority’s appeal. The Court of Session rejected a requirement that the comparator’s transfer be realistically possible, but nevertheless held that the tribunal’s conclusion lacked evidential support: [2011] CSIH 2.

The central issue was whether the hypothetical comparison required feasibility of co-location or speculation about adjustments which might be made to the comparator’s terms after transfer.

1. Appeal allowed unanimously. Lady Hale delivered the judgment, with which Lord Hope, Lord Wilson, Lord Reed and Lord Hughes agreed. The employment tribunal’s decision was restored.

2. Section 1(6) of the Equal Pay Act 1970 contains two alternatives. Employees of the same or associated employer at the same establishment are in the same employment without any common-terms inquiry. Where they work at different establishments, the relevant comparison is between the terms on which the male comparator works at his establishment and those on which he is, or hypothetically would be, employed at the claimant’s establishment. Broad similarity is sufficient; complete correspondence is unnecessary.

3. The hypothetical exercise assumes that the comparator is transferred to the claimant’s establishment to perform his present job. It does not require a real possibility, likelihood or feasibility that he would ever work there. Such requirements would add an unwarranted gloss to section 1(6) and would frustrate equal pay protection where different but equally valuable jobs must be performed in different places.

4. The tribunal should not replace the comparator’s present job with a newly created hybrid job or speculate about adjustments designed to make his terms fit the claimant’s workplace. The question is whether he would retain the same or broadly similar terms upon the stipulated transfer. The evidence permitted the tribunal to conclude that the comparators would remain on broadly similar Green Book terms.

5. The same-employment test identifies the terms and conditions with which comparison may be made. It must not be used as a proxy for the separate questions whether the work is like work, work rated as equivalent or work of equal value, or whether a material factor other than sex explains the difference. Its purpose is to exclude cases in which geography plays a significant part in determining the relevant terms.

6. European Union law supported that construction. Directly effective equal pay rights require the disparity to be attributable to a single source capable of restoring equal treatment. Here the local authority employed both groups and could remedy any inequality. Section 1(6), properly construed as a low threshold, therefore presented no barrier requiring disapplication.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and restored the employment tribunal’s decision: [2013] UKSC 45.

2. Court of Session: Refused the claimants’ appeal. Although it rejected the real-possibility test, it held that the evidence did not support the tribunal’s factual conclusion: [2011] CSIH 2; 2011 SLT 203.

3. Employment Appeal Tribunal: Allowed the local authority’s appeal, holding that the claimants had to demonstrate a real possibility that the comparators could perform the same or broadly similar jobs at their establishments: UKEATS/47/08; [2009] ICR 1363.

4. Employment tribunal: Determined at a pre-hearing review that the claimants and comparators were in the same employment within section 1(6) of the Equal Pay Act 1970.