Dumfries and Galloway Council v North and Others: EAT 24 Apr 2009

EAT 244 Equal Pay claims by classroom assistants, support for learning assistants and nursery nurses employed by local authority. They sought to compare themselves with male manual workers based elsewhere, at depots and at a swimming pool, and employed as road workers, groundsmen, refuse collectors, refuse drivers and a leisure attendant. There were also male manual workers employed by the local authority at schools (i.e. the same establishments as them), as janitors, but the claimants did not seek to compare themselves with them. The issue was whether or not the claimants and their chosen comparators were in the same employment for the purposes of section 1(2)(c) of the Equal Pay Act 1970. The Employment Tribunal found that they were. Judgment reversed on appeal. On a proper construction of section 1(6) of the 1970 Act, the claimants and comparators were not in the same employment. It had not been established that the comparators would or could have worked, in their comparator jobs, at schools. Even if it was possible to hypothesise that they could have been so employed, it had not been established that their terms and conditions would have been broadly similar to those on which they were employed when not based at schools.


Smith L J


[2009] UKEAT 0047 – 08 – 2404, [2009] SFTD 369, [2009] UKFTT 139 (TC), [2009] IRLR 915, [2009] ICR 1362, [2009] STI 2146




CitedEnderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .

Cited by:

At EATNorth and Others v Dumfries and Galloway Council and Another SCS 7-Jan-2011
Equal pay claim: whether claimants and comparators ‘in the same employment’ . .
At EATNorth and Others v Dumfries and Galloway Council (Scotland) SC 26-Jun-2013
The claimants sought to bring an equal pay claim, but the prospective male comparators were employed at a different establishment and under different conditions. They appealed from a decision that they had not met the threshhold to make a claim.
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 28 July 2022; Ref: scu.347175