Introduction

The case of North & Ors v. Dumfries and Galloway Council ([2013] ELR 536) addressed pivotal issues surrounding the interpretation of "same employment" under the Equal Pay Act 1970. This case involved 251 female employees—classroom assistants, support for learning assistants, and nursery nurses—challenging their local authority employer on grounds of unequal pay compared to their male counterparts. The key legal questions revolved around defining "same employment," identifying valid comparators, and ensuring compliance with both UK and European Union (EU) equality laws.

Summary of the Judgment

The United Kingdom Supreme Court delivered a unanimous decision affirming the Employment Tribunal's finding that the female claimants were indeed in the "same employment" as their male comparators under section 1(6) of the Equal Pay Act 1970. The Court emphasized that "same employment" does not necessitate employment within the same establishment but allows for comparison across different establishments provided that the terms and conditions are broadly similar. The judgment underscored that the local authority had failed to demonstrate a "real possibility" that male comparators could be employed under similar terms within the claimants' establishments, thereby reinforcing the lower court's decision in favor of the claimants.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shaped the Court's interpretation of "same employment." Notably:

• Leverton v Clwyd County Council ([1989] AC 709): Established that "common terms and conditions" do not require broad similarity but can be based on the same collective agreement.
• British Coal Corporation v Smith ([1996] ICR 515): Clarified that "common terms and conditions" are not about identical contracts but broadly similar terms across establishments.
• Lawson v Britfish Ltd ([1987] ICR 726) and North Cumbria Acute Hospitals NHS Trust v Potter ([2009] IRLR 176): Supported the notion that being employed by the same or an associated employer suffices for "same employment."
• Defrenne v Sabena (Case 43/75) [1976] ICR 547: Emphasized the direct effect of EU principles on equal pay, influencing the interpretation under UK law.
• City of Edinburgh Council v Wilkinson [2010] IRLR 756 and [2011] CSIH 70, 2012 SC 423: Addressed the "real possibility" test for comparators but ultimately found that mere feasibility suffices without requiring a substantial likelihood.

Legal Reasoning

The Supreme Court dissected section 1(6) of the Equal Pay Act 1970, distinguishing its two main propositions:

1. Same or Associated Employer in the Same Establishment: Straightforward inclusion where comparators are employed by the same or an associated employer within the same establishment.
2. Employment Across Different Establishments with Common Terms: Interpreted to allow comparisons across different establishments provided that a common set of terms and conditions governs employment, typically through collective agreements.

The Court rejected the notion that "common terms and conditions" require a rigorous similarity, allowing for broad similarity as highlighted in previous cases. The focus remained on whether the discrepancy could be rectified by the employer, aligning with EU directives on equal treatment.

Impact

This judgment has far-reaching implications for future equal pay claims, particularly in public sector and large organizational contexts where employees may be spread across multiple establishments. It clarifies that comparators do not need to work at the same site, provided that their employment terms are governed by a common framework allowing for equitable comparison. This aligns UK law closely with EU principles, ensuring broader protection against gender-based pay discrimination.

Complex Concepts Simplified

"Same Employment"

Under the Equal Pay Act 1970, "same employment" doesn't mean working in the exact same location or under identical contracts. Instead, it allows for comparison across different workplaces owned by the same employer or associated employers, provided that there is a broadly similar set of employment terms. This ensures that gender-based pay disparities can be addressed even in complex organizational structures.

Comparator

A "comparator" refers to a person of the opposite sex performing work of equal value within the same or comparable employment conditions. Identifying valid comparators is crucial for establishing a claim under equal pay legislation.

Deemed Equality Clause

This clause ensures that employees are not subject to less favorable terms and conditions than their counterparts solely based on gender. If disparities are found, the less favorable terms are deemed to have been equally applied.

Broad Similarity Test

Rather than requiring exact matches in employment terms, the broad similarity test allows for general comparability in conditions. This means that even if there are minor differences, the overall framework of employment terms must be similar enough to make fair comparisons.

Conclusion

The Supreme Court's decision in North & Ors v. Dumfries and Galloway Council reinforces the principle that "same employment" under the Equal Pay Act 1970 is sufficiently broad to encompass multiple establishments under a common employment framework. By adopting a broad similarity approach, the Court ensured that gender-based pay discrimination can be effectively challenged across diverse organizational structures. This judgment not only aligns UK law with EU directives but also provides a clearer, more inclusive pathway for future equal pay claims, promoting fairness and equality in the workplace.