Multiple equal pay cases have continued to keep the courts busy over the last quarter, and we received the EAT's decision in the case of Cooksey & ors v Trafford Borough Council & ors in May this year.

This case, which concerns on-call payments which are made to male (but not female) council workers, was an appeal from the decision of the Manchester Employment Tribunal.

Mrs Cooksey and her fellow Claimants were all women employed in a variety of roles for Trafford Council. All of the Claimants (with the exception of Mrs Cooksey who was a Caretaker) undertook roles which have traditionally been performed by women working part time. The Claimants brought equal pay claims, comparing themselves with male manual workers also working for the Council. The male workers were paid around a third more than the Claimants, mainly due to additional payments, such as attendance allowances, bonuses and on-call payments.

In addition, Mrs Cooksey (who held the position of caretaker, which had traditionally been performed by men) claimed that she was adversely impacted by the fact that caretakers were not entitled to receive the incentive schemes (bonuses or attendance allowances), and that this equated to an inequality in pay.

The Tribunal's Decision

The Council accepted that, save for caretakers, the fact that the bonus and attendance allowance payments were made to the predominantly male roles caused an adverse disparate impact as between the Claimants and their comparators. The Council was therefore required show that the additional payments made were due to a "genuine material factor which was not the difference of sex". The Council claimed that the genuine material factor for the difference in pay was that the men had been the beneficiaries of productivity schemes based on measurable outputs, whereas the women were in jobs which did not have measurable outputs and so were not suitable for that type of productivity scheme. With regard to the on-call payment, the Council argued that it only made these payments where it had a statutory duty to provide cover, and that the making of the payments (for example, to electricians who may be called out to mend traffic lights) was a proportionate means of achieving a legitimate aim.

The Tribunal rejected the arguments of the Council in relation to the bonus and attendance allowances, finding that they had not carried out a sufficient analysis of whether an incentive scheme could be introduced for the jobs undertaken by the Claimants. In relation to the on-call payments, the Tribunal concluded that whilst the Council had a legitimate aim in making the payments, it had failed to demonstrate that it could not have achieved the same aim with less discriminatory means (such as employing people to work specifically on-call without additional payments). The Claimants were therefore successful in their claims.

In relation to Mrs Cooksey, the Tribunal found that at the time that the incentive schemes were introduced, the breakdown of caretakers was equal as to men and women. The caretaker group had never been predominantly female, and therefore there was no disparate adverse effect on females in this group. The Tribunal did not accept that for the purposes of the comparison, the caretaker group should be included in a wider pool with other groups of council workers. Mrs Cooksey's claim therefore failed.

The Council appealed in relation to the Tribunal's findings relating to the bonus and attendance allowances, and the on-call payments. Mrs Cooksey appealed against the Tribunal's decision in relation to her role.

The Employment Appeal Tribunal Decision

In making its decision, the EAT looked firstly at the issue of the bonus and attendance allowance. The EAT found that the Tribunal had not erred in concluding that the Council could not objectively justify these allowances and therefore it rejected the Council's appeal and upheld the Tribunal's decision.

In relation to the on-call payment, however, the EAT allowed the Council's appeal, concluding that the Council could objectively justify the payment of on-call allowances to the male comparators. The EAT concluded that the legitimate aim of the Council in making these payments had been to reward employees who were prepared to be "on call" and carry out duties, and that the Tribunal's decision in this regard had therefore been incorrect.

The EAT also allowed the appeal of Mrs Cooksey, overturning the Tribunal's decision on this point. The EAT decided that the Tribunal had erred when limiting the pool for comparison for Mrs Cooksey to caretakers alone, and that it should, instead, have combined the caretakers with a wider pool of Council workers. The EAT also held that the Tribunal had not considered properly the relevant authorities when considering whether adverse disparate impact on the grounds of gender could be shown. The EAT therefore remitted the case back to the Employment Tribunal to determine both this issue, and the issue of the relevant pool for comparison.

Audit Commission v Haq & ors

Meanwhile, the Court of Appeal decision is still awaited in the case of Audit Commission v Haq & ors. This is a leading case concerning the issue of pay protection, in which the EAT found (in Spring 2011) that an historic arrangement, which provided for different rates of pay for men and women doing the same job, was not discrimination. In this case, the EAT considered that the reason for the historic difference in pay was legitimate and went on to find that a pay protection scheme is only likely to infringe the law if it is based on past discrimination and perpetuates that past discrimination. Haq & ors appealed to the Court of Appeal, and the judgment (which was expected in early August) is due to be handed down any day now.