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On appeal from: [2011] CSIH 2.

The issue before the Court was whether the appellants, 251 classroom assistants, satisfied the threshold conditions set out in the Equal Pay Act 1970, s 1(6) in order to bring claims alleging that they were employed under less favourable terms and conditions than certain male employees of the respondent council who do work of equal value. The appellants sought to establish that the male employees were “in the same employment” as they were, notwithstanding the fact that they were employed at different establishments from the appellants.

Unanimously allowing the appeal, the Court held that the requirement that claimants and their chosen comparators were “in the same employment” did not simply mean that they must be employed by the same employer. The correct hypothesis to consider was the transfer of the comparators to do their present job in a different location. The evidence from the respondent confirmed that, although they could not envisage it happening, in the event that the comparators were based in schools then they would retain their terms and conditions. The employment tribunal had adopted the correct test and was entitled to find it satisfied on this evidence. It was not necessary to show that it was feasible to co-locate the relevant workers. This was an unwarranted gloss on s 1(6) and would defeat the object of the legislation.

For judgment, please download: [2013] UKSC 45
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII