Case Preview: North & Ors v Dumfries and Galloway Council (Scotland)
21 Tuesday May 2013
Today is the second day of the two-day appeal hearing against the decision of the Court of Session (Inner House, Second Division) in North & Ors v Dumfries and Galloway Council  CSIH 2.
The issue before the Supreme Court is in what circumstances, if any, can a claimant in an equal pay claim show that she is in the “same employment” as a man employed by the same or an associated employer at a different establishment in a different job from any job carried out at the woman’s establishment and under a different collective agreement?
The appellants are female school employees who were employed as school classroom assistants, support for learning assistants and nursery nurses. The Court of Session upheld the EAT’s decision that the employees could not (under domestic equal pay law), in their claim for equal pay, select as their comparators groundsmen, road workers, refuse drivers and collectors and a leisure attendant also employed by the local authority even though the EAT applied the wrong test at law when reaching their decision.
Under the Equal Pay Act 1970 (replaced with minor changes by the Equality Act 2010) an individual can claim equal pay with a comparator of the opposite sex employed on equal work “in the same employment” unless the difference is due to a genuine material factor, not sex. In order to be in the same employment for this purpose, under s 1(6) of the 1970 Act, both the claimant and the comparator have to be employed by either the same or an associated employer at either: (i) the same establishment; or (ii) a different establishment where common terms and conditions are observed either generally or for the relevant classes of employee. This test was considered in the House of Lords in British Coal Corporation v Smith and others  ICR 515.
Employment Tribunal (“ET”) Decision
The ET applied the test in British Coal Corporation and held that it could be concluded that if both the female school employees and the male comparators were employed at the same establishment they would be on broadly similar terms and accordingly that both were in the same employment.
Employment Appeal Tribunal Decision
The EAT held that an essential part of the test in British Coal Corporation is that an equal pay claimant must firstly show that there is a real possibility of the chosen comparator being employed at the same establishment either in the job they carried out at the other establishment or in a broadly similar job. The female employees submitted an argument that the real possibility test ran counter to European Union law, particularly Article 141 EC Treaty (Nice), and that s 1(6) of the 1970 Act should be construed or modified in a manner consistent with European law. This argument failed and the EAT reversed the ET’s earlier decision.
Court of Session (Inner House, Second Division) Decision
The Court found that there was no need to show “a real possibility” that the male comparators would be employed at the same establishment as the female employees. This test was not set out in statute or in precedent, and it placed an additional burden on the female employees. Despite this, they failed to demonstrate that they were “in the same employment” as their male comparators and, therefore, even though the EAT judgment contained an error of law, its ultimate determination was correct.
In relation to the European law argument, the Court held that it had not been requested to grant a declaration that s 1(6) of the 1970 Act was incompatible with Article 141 or to give a ruling on the effect of the direct application of Article 141. The appeal only concerned the proper construction of s 1(6) to the particular circumstances of the case.
The Supreme Court’s decision may have interesting implications for equal pay claims in relation to local authorities operating different establishments and (by extension) for equal pay claims where single employers operate multiple establishments. It could therefore have far reaching effects.