Employment Law

Eighth edition

by Deborah Lockton

Update for Chapter 6

Equality of Terms

This update was last revised in October 2012
6.3 The male comparator

After the discussion of South Tyneside Council v Anderson and ors please note

As such the EAT in Beddoes v Birmingham City Council [2011] UKEAT 0037- 43 has stated that school staff who were council employees could use other council employees as male comparators despite the fact that school governors set the claimant's terms and conditions based on the council's recommendations. However, the EAT went on to say that if there was sufficient evidence of departures by school governors from council recommendations the outcome may be different.
6.6.3 Full hearing

After the discussion of Hayward v Cammell Laird Shipbuilders please note

This has been re-stated by the Court of Appeal in St Helens and Knowsley NHS Trust v Brownbill [2011] EWCA Civ 903. In the case five female hospital workers claimed equal pay. The claimants received a higher basic hourly rate and all but one received higher pay overall than their male comparators, however all of the claimants received a lower hourly rate for weekend work and unsocial hours which was the basis of their claim. The tribunal rejected their claim but both the EAT and the Court of Appeal held that each term relating to remuneration was distinct and capable of comparison and should not be lumped together.
6.7 Defence

After the discussion of Financial Services v Byrne (No 2) please note

In Secretary of State for Justice v Bowling [2011] UKEAT 0297/11/2911 the claimant and her comparator were recruited on like work at about the same time but he was placed two points above the claimant because of his background and experience. By the time of the next pay review the claimant had caught up in terms of performance. The tribunal held that the reason for the difference had ceased to exist but this was overturned by the EAT. That court held that once the cause for the differential had been determined as non sex based it was a genuine material factor and was not time limited.
6.8.3 Time limits and retrospective claims

After the discussion of Emmott v Minister for Social Welfare and Attorney-General please note

However, this discussion may now be obsolete since the Court of Appeal decision in Birmingham City Council v Abdulla [2011] EWCA Civ 1412. In the case 174 former employees of the council argued that the failure to give them equal pay with predominantly male groups of staff was a breach of contract enforceable in the civil courts. While the council applied to strike out on the basis that civil courts should decline to hear claims after the six month time limit for presenting claim in a tribunal has lapsed, Mummery LJ said it would be an extreme exercise of judicial discretion to strike out a claim for breach of an equality clause brought within the limitation period applicable to the civil courts. The EqA s.122 does give a discretion to strike out claims that could be more conveniently determined in the tribunal, but it was did not require claimants to explain why they could not get the claim into the tribunal in time and parliament had given them the option of pursuing a claim in the tribunal or the civil courts.

After Methven v Cow Industrial Polymers please note

This has recently been confirmed by the EAT in Skills Development Scotland v Buchanan [2011] UKEAT 0042-10-2505 however, the EAT also stated that an employer is under no duty to narrow the pay gap provided the decision to award pay rises (and thus perpetuate the gap) is not tainted by sex.