MacDonald & Ors v Glasgow City Council (Equal Pay Act)

A job evaluation study may lawfully use separate factor plans and produce separate grade and working-context-and-demands scores. It remains valid if, taken together, the plans objectively evaluate the demands of the job under Equal Pay Act 1970, section 1(5). The employer must prove that its study qualifies; a claimant need only show reasonable grounds for suspecting sex discrimination or other unsuitability before the statutory protection is displaced.

Where pay protection perpetuates historic sex discrimination, an employer must identify a legitimate aim directed to that continuing differential and prove that the exclusion of previously underpaid workers is proportionate. A general wish to give immediate losers a soft landing, without considering those previously underpaid, does not suffice.

The claimants challenged Glasgow City Council’s Workforce Pay and Benefits Review. They contended that its job evaluation study was invalid because it generated separate grade and working-context-and-demands scores. They also challenged pay protection and assimilation arrangements which preserved some employees’ pre-review earnings, including earnings affected by historic discriminatory bonus payments.

An Employment Tribunal held that the study was valid and could be relied upon. It found that discriminatory effects in pay protection were objectively justified. In a supplementary judgment, it held that both scores had to be considered when deciding whether jobs were rated as equivalent.

The appeal concerned the validity and statutory suitability of the study, the burdens under sections 1(5) and 2A(2A), and whether the continuing discrimination inherent in pay protection and assimilation had been objectively justified.

1. Appeal allowed in part. The Employment Tribunal made findings it was entitled to make on the job evaluation study. Its decision that the study complied with section 1(5) of the Equal Pay Act 1970, and gave no reasonable grounds for suspicion under section 2A(2A), disclosed no error of law.

2. A study does not become invalid merely because it produces two scores. The Tribunal was entitled to find that the grade-factor and working-context-and-demands plans together evaluated the demands of each job. A job with the same grade and working-context-and-demands scores as another was rated as equivalent. The Tribunal was also entitled to assess the detailed methodological challenges on the evidence led, including the absence of expert evidence supporting the claimants’ technical criticisms.

3. The Tribunal correctly distinguished the employer’s burden to establish a qualifying study under section 1(5) from the claimant’s burden to raise reasonable grounds for suspicion under section 2A(2A). The latter is a low threshold, but it still requires a factual basis for suspicion.

4. The Tribunal erred in upholding pay protection. It found that the council had not considered extending protection to employees who had been historically underpaid because they were regarded as gainers under the new system. The Tribunal did not identify a legitimate aim directed to that exclusion or make findings capable of establishing that continuing discrimination was a proportionate means of achieving such an aim. A soft landing for employees facing an immediate pay reduction did not answer that issue. Competitive tendering could potentially have supplied justification, but there was no relevant evidence, costing or comparison.

5. Assimilation and pay protection were sufficiently connected to be considered together. Assimilation which preserved pre-review earnings could continue the same discrimination. The appeal was allowed on both matters and remitted to the Tribunal. The challenge concerning the Employee Development Commitment was dismissed; the Tribunal was entitled to leave that distinct sex-discrimination issue for the full hearing.

• Employment Appeal Tribunal: Appeal allowed in part. The Tribunal’s rulings on the job evaluation study were upheld. Its rulings on pay protection and assimilation were set aside and remitted.
• Employment Tribunal: Decision notified on 9 December 2013, with a supplementary decision notified on 7 May 2014. It held that the job evaluation study was valid and that pay protection was justified.