EAT Equal pay in the North East. Women whose jobs had been rated as equivalent with comparator men (and in some cases had been rated higher) were paid less because of the effect of bonuses and other extra payments known as attendance allowances and wet weather payments. Disparate impact was conceded and indeed, in the case of a number of claimants who submitted their claims before a particular date, it was conceded that they were entitled to the bonuses. However, for claims submitted after that date the employers claimed that the difference in pay was objectively justified because it resulted from productivity schemes which conferred real efficiency savings on the Council and were largely self financing. The Tribunal held in some cases the bonuses no longer reflected any genuine incentive bonus scheme, and even with respect to the group of workers where they did, namely refuse collectors, the extra bonus was not justified because it would have been possible to construct a different kind of bonus scheme for the claimants, albeit not one which made any relevant cost savings. It was conceded by the employer that where the claimants could have been subject to a similar productivity scheme, then the bonus payments could not be justified. The Tribunal therefore had to consider whether this would have been possible. They found that although in some cases analogous productivity schemes could not have been constructed, in a number of other cases there was no evidence before them to suggest that they could not, and since the burden was on the employer, these cases succeeded. The Tribunal also held that the attendance allowances were not justified but that the wet weather payments were justifiably paid only to those who worked in inclement weather. They also held that claimants could legitimately compare themselves with a comparator rated lower in the job evaluation scheme.
The claims related to a period pre April 2004. Since that date a new job evaluation scheme has been entered into. This provided pay protection (red circling) for those whose pay was adversely affected as a consequence. The claimants contended that if their claims succeeded (and some had been conceded) then they should also be given the benefit of pay protection on the basis that although they were not in fact in receipt of the higher pay, they ought to have been had they been given equal pay. Accordingly they contended that the employers could not rely upon a genuine material factor defence under s.1(3) of the Equal Pay Act because the factor relied upon was not a material factor ‘other than sex’ within the meaning of that section. It was sex tainted. The employers contended that the historic sex discrimination was irrelevant. The purpose of pay protection was to cushion employees from the practical consequences of having to move towards lower pay; if they had not in fact been in receipt of that pay, and adjusted their financial arrangements accordingly, it was wholly reasonable that they did not qualify for the payment. The Employment Tribunal found against the Council.
There were various appeals and cross appeals. The Council appealed the finding that there was no objective justification with respect to the refuse workers; that comparison could be made with those rated lower; that there was no evidence that bonus incentive schemes could not have been introduced for certain of the claimant groups; and the conclusion that the claimants should receive the protected pay which would have been available to them had they been paid their legal entitlement at the relevant time. The claimants cross appealed certain detailed findings relevant to particular claimants, principally on perversity grounds.
The EAT upheld two of the grounds of appeal. They held that the Tribunal had erred in finding that the fact that some other non-incentive based bonus scheme could have been introduced for some claimants defeated the council’s GMF defence with respect to those claimants; and that the Tribunal was wrong to say that there was no evidence relating to the issue whether some of the claimant groups could or could not be subject to a productivity scheme. The other grounds of appeal, and the grounds raised in the cross appeal, were all dismissed.
The Honourable Mr Justice Elias (President)
 UKEAT 0135 – 06 – 1610, UKEAT/0135/06
England and Wales
See Also – Redcar and Cleveland Borough Council v Bainbridge and others EAT 15-Nov-2006
See Also – Bainbridge and others, Redcar and Cleveland Borough Council v Redcar and Cleveland Borough Council, Williams and others EAT 31-Jan-2007
EAT Practice and Procedure – Compromise. . .
See Also – Bainbridge and others v Redcar and Cleveland Borough Council EAT 23-Mar-2007
EAT Practice and Procedure – Compromise
Equal Pay Act – Work rated equivalent; Damages/Compensation
This case raises three issues, two of which are of particular significance in the field of equal . .
See Also – Redcar and Cleveland Borough Council v Bainbridge and others CA 21-Sep-2007
The council appealed against a finding of discrimination under the 1970 Act, saying it was impermissible to use as a comparator somebody found after a job evaluation study to be of a different, but lower grade, but with higher pay.
Held: The . .
See Also – Redcar and Cleveland Borough Council v Bainbridge and others (‘Bainbridge 1’) CA 29-Jul-2008
Pay protection provisions are commonly adopted, and provided any differential in pay does not continue for too long, they may justify what would otherwise be unlawful indirect discrimination. . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.247827