Kells v. Pilkington Plc: Redefining the Equal Pay Comparator Period

Introduction

Kells v. Pilkington Plc ([2002] 2 CMLR 63) is a pivotal case adjudicated by the United Kingdom Employment Appeal Tribunal (EAT) on May 2, 2002. Mrs. Kells, a long-term employee of Pilkington Plc, filed claims alleging breach of the Equal Pay Act, sex discrimination, and constructive unfair dismissal. The crux of her equal pay claim was centered on her assertion that she was remunerated less favorably than her male counterparts performing work of equal value. The Employment Tribunal at Liverpool dismissed her claims, invoking a "6-year comparator bar," which Mr. Kells challenged in the EAT. This commentary delves into the nuances of the judgment, exploring the legal principles established and their broader implications.

Summary of the Judgment

The Employment Tribunal dismissed Mrs. Kells' equal pay claim by declaring comparisons with her male colleagues as "frivolous," primarily because the events she relied upon were over six years old at the time of her claim. Additionally, her sex discrimination claim was ruled out of time due to the absence of a continuing discriminatory policy or practice. Upon appeal, the EAT scrutinized these decisions, particularly challenging the legitimacy of the six-year comparator bar applied by the Tribunal. The EAT concluded that the six-year restriction on comparators was not a statutory requirement but rather a misapplication by the Tribunal, leading to the decision being set aside and remitted for further consideration.

Analysis

Precedents Cited

The Judgment extensively referenced several key precedents to frame its analysis:

Macarthys Ltd v. Smith [1980] ICR 672: Affirmed that equality in pay does not require contemporaneity of employment between the female claimant and the male comparator.
Albion Shipping Agency v. Arnold [1981] IRLR 525 EAT: Suggested that while comparators need not be contemporaneous, substantial intervals between employment periods could complicate claims.
Diocese of Hallam Trustee v. Connaughton [1996] IRLR 505: Held that succeeding an employee in the same role could serve as a valid comparator, regardless of the time gap.
Levez v. T.H. Jennings (Harlow Pools) Ltd. (No. 2) [1999] IRLR 764: Highlighted the incompatibility of the six-year restriction with EU law, leading to its invalidation.
Owusu v. London Fire & Civil Defence Authority [1995] IRLR 574 EAT: Clarified that continuous acts of discrimination should be treated as a single event under the law.
King v. G.B. China Centre [1992] ICR 516 C.A.: Established that the existence of discriminatory policies can be inferred if the employer fails to provide a satisfactory explanation.
Cast v. Croydon College [1998] IRLR 318 C.A.: Emphasized that discriminatory practices need not be formally articulated by employers to be actionable.

These precedents collectively shaped the Tribunal's understanding of comparator selection and the temporal limitations imposed on such comparisons.

Legal Reasoning

The EAT critically examined the Tribunal's reliance on a six-year comparator bar, seeking its statutory or judicial basis. It determined that no such restriction exists within the Equal Pay Act 1970 or relevant case law. The Tribunal had erroneously conflated the six-year limitation period for recovering arrears (stemming from Levez v. T.H. Jennings) with the permissible period for comparator selection, which pertains to the events being compared rather than the compensation sought.

Furthermore, the EAT underscored that comparators need not be contemporaneous, aligning with the European Court of Justice’s interpretation that equality in pay is a qualitative assessment. The Tribunal's failure to consider the evidence related to comparators beyond the six-year window was deemed a legal misstep, not warranting the outright dismissal of the claim but necessitating a remittance for proper evaluation.

Impact

This Judgment holds significant weight in the realm of employment law, particularly concerning equal pay claims. By invalidating the arbitrary six-year comparator bar, the EAT reinforced the principle that claims should be assessed based on the equality of work rather than the temporal proximity of comparable employment events. This broadens the scope for claimants to establish pay disparities, ensuring that historical pay structures do not unduly limit the pursuit of justice in equal pay claims. Moreover, it aligns UK law more closely with EU directives, promoting a more egalitarian approach to pay equality.

Future cases will likely reference Kells v. Pilkington Plc when addressing issues related to the selection of comparators, ensuring that claimants are not unduly restrained by time-based limitations that lack statutory underpinning. Employers will need to be more diligent in maintaining equitable pay structures over time to avoid potential claims grounded in historical disparities.

Complex Concepts Simplified

Comparator Selection in Equal Pay Claims

In equal pay claims, a "comparator" is a person performing the same or similar work whose pay is compared to that of the claimant. The selection of an appropriate comparator is crucial for establishing whether there exists a pay disparity.

Six-Year Comparator Bar

The Tribunal in this case applied a six-year limit on the period during which the comparators' employment events occurred. This meant that any pay differences arising from roles held more than six years prior were deemed irrelevant. The EAT refuted this application, clarifying that no such legal requirement exists for comparator selection based on time.

Continuous Act of Discrimination

A continuous act of discrimination refers to ongoing discriminatory practices or policies that persist over a period, as opposed to isolated incidents. Under the Sex Discrimination Act 1975, such continuous acts can be treated as a single event, allowing for claims even if the discriminatory actions occurred over an extended timeframe.

Equality Clause

An equality clause is a provision in a contract that ensures equal treatment in terms of pay and conditions between different groups, typically male and female employees. Breaching this clause can lead to claims under the Equal Pay Act.

Conclusion

The Kells v. Pilkington Plc Judgment serves as a cornerstone in equal pay jurisprudence, dismantling the unfounded six-year comparator restriction and advocating for a more flexible, fair approach to comparator selection in equal pay claims. By emphasizing the qualitative nature of equal pay and aligning legal interpretations with EU standards, the EAT has fortified the framework ensuring gender pay equality. This decision not only empowers employees to seek redress for historical pay discrepancies but also mandates employers to uphold consistent and equitable pay practices. As a result, it significantly contributes to the ongoing pursuit of gender equality in the workplace.