Dumfries and Galloway Council v North

The Supreme Court considered the meaning of "in the same employment" in section 1(6) of the Equal Pay Act 1970 for the purposes of equal pay claims. The court held that where employees are employed by the same employer at different establishments, the relevant comparison is between the terms and conditions under which the male comparators are employed at their establishments and the terms which would apply to those comparators if they were employed at the claimant's establishment. The required commonality is not exact identity but that the terms would be, or would be capable of being, broadly similar. The court rejected any requirement that there be a "real possibility" or that it be "feasible" that the comparators would in fact be based at the claimant's establishment. The appeal was allowed and the decision of the employment tribunal restored.

The claimants were 251 classroom assistants, support for learning assistants and nursery nurses employed by Dumfries and Galloway Council under national local authority collective agreements (the "Blue Book" and a nursery supplement). They sought equal pay comparisons with predominantly male manual workers employed under a different collective agreement (the "Green Book"). None of the chosen male comparators were based at the same schools as the claimants.

The central legal issue was the meaning of "in the same employment" in section 1(6) of the Equal Pay Act 1970 and, in particular, whether claimants must show a real possibility or feasibility that the male comparators could be employed at the claimant's establishment in order to make a comparison. The employment tribunal found in the claimants' favour on the "same employment" point, applying a hypothetical test: whether the comparators, if based at the claimants' establishments to do their present jobs, would be employed on broadly similar terms (the correct question identified by the tribunal).

On appeal the Employment Appeal Tribunal applied a "real possibility" test and allowed the employer's appeal. The Court of Session also found that the tribunal's factual findings were not open on the evidence and refused the claimants' appeal. The matter reached the Supreme Court on appeal.

The Supreme Court, applying and explaining the earlier House of Lords authorities (including Leverton v Clwyd and British Coal Corporation v Smith), held that section 1(6) requires a comparison of the terms observed by classes of employees across establishments and that the similarity required is a broad similarity of terms, not exact correspondence. The court rejected supplementary requirements that a claimant show a real possibility or feasibility of co-location of comparator and claimant. The court also considered the matter in the context of European Union equal pay principles and concluded that the construction adopted by the claimants was compatible with EU law because the inequality here was attributable to a single source (the employer) capable of remedying it. The Supreme Court therefore allowed the appeal and restored the tribunal's decision that the claimants and their chosen comparators were "in the same employment" for the purposes of section 1(6).

Appeal allowed. The Supreme Court held that, for the purposes of section 1(6) of the Equal Pay Act 1970, it is sufficient for claimants to show that the terms and conditions under which the male comparators are employed at other establishments are, or would be, broadly similar to the terms that would apply if those comparators were employed at the claimants' establishment. There is no requirement to show a "real possibility" or "feasibility" that the comparators would in fact be based at the claimant's establishment. The employment tribunal had asked the correct question and was entitled on the evidence to conclude in the claimants' favour; its decision was restored.

Employment Tribunal (pre-hearing review decided in favour of claimants, May 2008); Employment Appeal Tribunal allowed employer's appeal, UKEATS/47/08, [2009] ICR 1363 (May 2009); Court of Session dismissed claimants' appeal, [2011] CSIH 2, 2011 SLT 203; appeal to the Supreme Court allowed, [2013] UKSC 45 (this judgment). Parallel authority: City of Edinburgh Council v Wilkinson considered at EAT and in the Court of Session ([2010] IRLR 756; [2011] CSIH 70, 2012 SC 423).