Walker v Co-Operative Group Ltd & Anor

An equal pay claim based on work rated as equivalent by a job evaluation study is prospective. The study cannot establish equal work for an earlier period. Once equal work is shown, the employer defeats the sex equality clause under the Equality Act 2010 s 69 by proving a genuine factor which caused the pay difference, is unrelated to sex, and is significant and relevant to the difference between the cases. The employer need not prove that the disparity was objectively justified where sex discrimination is absent.

A factor does not cease to operate merely because it originated when pay was fixed or is described as historical. In a dismissal discrimination claim, positive findings about the actual reason for dismissal leave the burden of proof provisions with no work to do. A discriminatory finding about a separate appraisal does not establish that a dismissal for reorganisation was discriminatory.

Samantha Walker brought claims against the Co-operative Group and its chief executive, including equal pay and direct sex discrimination. The Employment Tribunal found that her work became equal to that of two male comparators following a job evaluation study, but rejected the material factor defence only on the basis that the historical explanations were no longer material. It also found discrimination in a 2015 performance appraisal but rejected discrimination in her dismissal.

On the employers’ appeal and Mrs Walker’s cross-appeal, the Employment Appeal Tribunal, in UKEAT/0087/19, allowed the equal pay appeal and dismissed the discrimination appeal. The central issues before the Court of Appeal were whether the job evaluation study operated retrospectively, whether the pay factors remained causative, and whether the appraisal finding tainted the dismissal.

The appeal was dismissed on both grounds. Bean LJ gave the leading judgment. Males LJ agreed and added observations on the statutory structure of equal pay claims. Phillips LJ agreed with both judgments.

1. Under sections 64 and 65 of the Equality Act 2010, proof that the claimant’s work is equal to that of the comparator is the essential starting point. The Employment Tribunal’s decision to leave the date of equal work for a remedy hearing was conceptually and practically unsatisfactory. It should have fixed the date or found that equal work had not been proved before February 2015.
2. A job evaluation study can establish work rated as equivalent under section 65(1)(b) and section 65(4), but it looks to the present and future, not the past. The decision in Redcar & Cleveland Borough Council v Bainbridge [2008] EWCA Civ 885, [2009] ICR 133 defeated any retrospective use of the study. The possible distinction for claims based on like work or work of equal value, noted in Hovell v Ashford & St Peter’s Hospitals NHS Trust [2009] ICR 1545, did not assist on the pleaded rated-equivalent case.
3. Once equal work is established, the employer may rely on section 69. Applying Glasgow City Council v Marshall [2000] 1 WLR 333, the employer must show a genuine, causative and sex-unrelated factor which is significant and relevant to the difference between the cases. It need not prove that the disparity was justified if the absence of sex discrimination is established. A factor described as historical remains material if it continues to explain the differential at the relevant date. In this case market forces continued to explain Mr Asher’s pay, while Mr Folland’s greater executive experience was sufficient to explain his differential if he remained a comparator. The EAT therefore rightly allowed the equal pay appeal without remitting the claim.
4. The dismissal claim was straightforward. The Employment Tribunal positively found that the actual reason for dismissal was the reorganisation of the HR function and that it constituted some other substantial reason. A hypothetical male holder of the same role would have received the same contractual notice and opportunity to take a new role. Under Hewage v Grampian Health Board [2012] ICR 1054, the burden of proof provisions add nothing where the tribunal makes positive findings on the evidence. The separate finding of discrimination in the appraisal did not require a finding that the dismissal was discriminatory.

The EAT order was upheld, the equal pay claim was dismissed, costs were awarded to the respondents, and permission to appeal to the Supreme Court was refused.

• Court of Appeal (Civil Division): Appeal dismissed. The Employment Appeal Tribunal’s order was upheld, the equal pay claim was dismissed, costs were awarded to the respondents, and permission to appeal to the Supreme Court was refused.
• Employment Appeal Tribunal: In UKEAT/0087/19, the employers’ equal pay appeal was allowed. Mrs Walker’s appeal concerning direct discrimination in dismissal was dismissed.
• Employment Tribunal: Judgment promulgated on 13 November 2018. The tribunal found ordinary unfair dismissal, equal work from a date to be determined, and direct sex discrimination in the 2015 performance assessment. The remaining claims were dismissed.