The Court of Session has recently held, in the case of Dumfries and Galloway Council v North, that the Employment Appeal Tribunal (EAT) applied the wrong test when considering whether female school workers and male manual workers, employed by the same employer at different establishments, were "in the same employment" for the purposes of the Equal Pay Act 1970.  There was no need, it said, for there to be a "real possibility" of the chosen comparators performing their jobs at the claimant's workplace.  This would place an additional burden on the claimants not required by the 1970 Act.

Where a claimant and her chosen comparator in an equal pay claim work at different establishments, and do not share common terms and conditions, the claimant will only be able to establish that they are "in the same employment" if she can show that common terms and conditions are observed "between the relevant classes of employee".  That is, the comparator must share common terms and conditions with those employees at the claimant's establishment who carry out a similar job to the comparator.  This case concerned the situation where there were no employees at the claimant's workplace carrying out similar work to her chosen comparator. 

Female school workers wanted to compare their pay with that of male manual workers, all employed by Dumfries and Galloway Council.  However, the EAT held that, as there was no real possibility of the chosen comparators carrying out their work in a school, there could be no common terms and conditions.  The Court of Session disagreed with the "real possibility" test applied by the EAT.  This was not a test set out in statute or precedent, and would place an additional burden on claimants.

However, the Court of Session went on to confirm that, where there are no individuals employed to do the comparators' class of job at the claimant's establishment, the claimant will have to show that if there were, they would be on common terms with the comparator group.  On the facts, if the comparators in this case did work in schools, their terms and conditions would not be broadly similar to their existing terms. The claimants therefore could not demonstrate they were "in the same employment" as their chosen comparators, and their appeal failed.  However, that is not the end of the matter, as the case now goes back to the employment tribunal, which may consider the wider test under Article 141 of the Equal Pay Directive, namely whether the chosen comparators are employed in the same "service" as the claimants and/or on terms and conditions that are attributable to a "single source".

One of the key issues in equal pay claims in the public sector is the wide scope of permissible comparators under the 1970 Act, which is subject to a large amount of complex case law.  While on the face of it the Equality Act 2010 claimed to simply reflect the terms of the 1970 Act, it is arguable that a slight change in wording results in a much more restrictive test.  No longer must common terms and conditions be observed "between the relevant classes of employee", but must be common "as between [the claimant] and [the comparator]".  It appears therefore that where the claimant and comparator are employed at different establishments, they must both be on common terms and conditions in order for a claim to succeed.  It is likely however that the 2010 Act will have to be subject to interpretation by the Courts before we have clarity on its precise scope.

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