Dumfries and Galloway Council v. North & Ors: Clarifying "Same Employment" Under the Equal Pay Act 1970

Introduction

The case of Dumfries and Galloway Council v. North & Ors ([2009] IRLR 915) addressed a pivotal question in equal pay litigation: under what circumstances can a female claimant demonstrate that she is in the "same employment" as a male comparator employed by the same employer but at a different establishment, holding different jobs, and governed by different collective agreements? The Employment Appeal Tribunal (EAT) considered this issue within the context of 244 equal pay claims from classroom assistants, support for learning assistants, and nursery nurses employed by the Dumfries and Galloway Council. The claimants sought to compare their employment terms with those of male manual workers employed under a separate collective agreement.

Summary of the Judgment

The central issue revolved around whether the claimants and their chosen male comparators were in "the same employment" as per Section 1(6) of the Equal Pay Act 1970. The Employment Tribunal initially held that they were in the same employment. However, upon appeal, the EAT scrutinized this determination, focusing on the applicability of the term "same employment" when the claimants and comparators were employed under different collective agreements ("Blue Book" for claimants and "Green Book" for comparators) and worked at different establishments (schools vs. depots and swimming pools).

The EAT ultimately concluded that the claimants and comparators were not in the same employment within the meaning of Section 1(6). The key reasons included the lack of common terms and conditions across establishments and collective agreements, and the improbability of comparators being employed at the claimants' establishments in the same roles. Consequently, the appeal was upheld, and the judgment was substituted to reflect that the claimants and comparators were not in the same employment.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that shaped the interpretation of "same employment":

Lawson and others v Britfish Ltd [1987] ICR 726: Established that employment at the same establishment is sufficient for comparability, regardless of differences in contract terms.
Leverton v Clwyd County Council [1989] IRLR 28 HL: Affirmed that the phrase "common terms and conditions" allows for comparators across different establishments under the same collective agreement.
British Coal Corporation v Smith [1996]: Highlighted that commonality of terms and conditions across different establishments can satisfy the "same employment" requirement even under different collective agreements.
South Tyneside Metropolitan Borough Council v Anderson and Ors [2007] IRLR 715 CA: Demonstrated limitations when applying "common terms and conditions" across different collective agreements.
Enderby v Frenchay Health Authority & another [1993] IRLR 591: Illustrated that comparisons could be made between individuals under different collective agreements.
Defrenne v Societé Anonyme Belge de Navigation Aerienne Sabena [1976] ECR 455 ECJ: Provided European law context for equal pay principles.

These precedents were instrumental in guiding the EAT's interpretation of "same employment," particularly in differentiating scenarios where collective agreements and establishment types either aligned or diverged.

Legal Reasoning

The crux of the legal reasoning centered on the interpretation of Section 1(6) of the Equal Pay Act 1970, which defines "same employment." The Tribunal originally assessed whether the collective agreements (Blue Book vs. Green Book) facilitated a comparison by establishing common terms and conditions. However, the EAT found that mere employment under different collective agreements and at different establishments did not satisfy the "same employment" criterion.

Lord Slynn's clarifications were pivotal, emphasizing that for "common terms and conditions" to apply, there must be a genuine or hypothetical possibility of comparators being employed at the claimant's establishment under similar conditions. The EAT criticized the Tribunal for failing to adequately consider whether the comparators could realistically perform their roles at the claimants' establishments, especially given the distinct nature of the jobs and the different collective agreements.

Moreover, the EAT underscored the importance of the Disclosure Scotland procedures and the day-to-day management by Head Teachers, which added layers of difference in employment terms that were not sufficiently bridged by common collective agreements.

Impact

This judgment significantly impacts future equal pay claims by clarifying the stringent requirements for establishing "same employment." Employers must recognize that differences in collective agreements and establishment types can preclude comparability, thereby limiting the scope of equal pay claims. Additionally, the decision stresses the necessity for claimants to demonstrate a real or plausible scenario where comparators could operate under similar terms within the same establishment, rather than relying solely on hypothetical or broad commonalities.

For legal practitioners, this case serves as a critical reference point when advising on equal pay claims, particularly in complex employment structures with multiple establishments and collective agreements. It also highlights the importance of thoroughly analyzing the employment terms and the practical feasibility of comparator roles within claimants' establishments.

Complex Concepts Simplified

Same Employment (Section 1(6))

"Same employment" under Section 1(6) of the Equal Pay Act 1970 means that a female worker can compare her pay with a male comparator if both are employed by the same employer, either at the same establishment or at different establishments where common terms and conditions of employment are observed. This does not automatically include male employees from entirely different job roles or establishments with different employment terms.

Collective Agreements ("Blue Book" vs. "Green Book")

Collective agreements are negotiated contracts between employers and employees (or their unions) that outline the terms and conditions of employment. In this case, the claimants were under the "Blue Book," while their comparators were under the "Green Book." The differences between these agreements can lead to variations in pay, benefits, and working conditions, thereby complicating equal pay comparisons.

Comparator

A comparator is a person in a similar role used to establish a baseline for equal pay claims. The comparator should ideally be someone performing work of equal or comparable value under similar conditions to make a valid comparison.

Conclusion

The judgment in Dumfries and Galloway Council v. North & Ors serves as a landmark in the interpretation of "same employment" under the Equal Pay Act 1970. By delineating the boundaries of acceptable comparators, especially in environments with multiple establishments and distinct collective agreements, the EAT provided clarity on the prerequisites for successful equal pay claims. This decision underscores the necessity for meticulous alignment of employment terms when establishing comparability and restricts equal pay claims to scenarios where genuine or plausible commonality exists. Consequently, employers can better understand the limitations and requirements of equal pay legislation, while claimants must ensure rigorous compliance with the established criteria to validate their claims.