Equal Pay Act can apply where the comparator does a lower rated job

Redcar and Cleveland Borough Council v Bainbridge and others (Court of Appeal)

This case involved a claim by women employed in manual jobs such as caterers and care workers who were seeking equal pay with jobs such as road sweepers, gardeners and refuse collectors. These latter jobs were generally male roles. A national evaluation of the jobs was set out in a “White Book” to outline grades that determined “equivalent work” and generally comparisons on pay were made against jobs in the same grade. Some claimants, however, sought to use a comparator from a job that was graded lower in the study as some differences in pay occurred due to bonuses and additional allowances.

The Council appealed against the decisions of both the Employment Tribunal and the Employment Appeal Tribunal which had both concluded that a woman may bring a claim for equal pay and use as a comparator a person from a lower pay grade. The Council argued that Section 1(2) of the Equal Pay Act 1970 (“EPA”) had not been properly considered. Section 1(2) implements Article 141 of the EU Treaty to ensure equal pay for male and female workers for equal work or work of equal value. The Council contended that the jobs were not rated as equivalent or of equal value because they were graded differently in the White Book.

Two cases were cited by the Employment Tribunal and the Employment Appeal Tribunal which the Council sought to distinguish at the Court of Appeal; namely, the 2004 case of SITA UK Limited v Hope and the Irish case of Murphy v Bord Telecom Eireann which was referred to the European Court of Justice in 1988. SITA stated that where a claimant undertook more duties than her comparator, it could not be concluded that they were not carrying out “like work” (a necessity in a comparison for equal pay under Section 1(2)(a) of the EPA) to defend paying her less. The Council argued that this case only applied to section 1(2)(a) (“like work”) and not Section 1(2)(b) of the EPA (“work rated as equivalent”) which was being considered in the current case. Furthermore, the case of Murphy concerned work of “higher value” to that of the comparator (as per Section 1(2)(c) of the EPA). The Council, therefore, argued that Murphy also did not apply here to “work rated as equivalent”.

The Court of Appeal upheld the findings of the Employment Tribunal and the Employment Appeal Tribunal and stated that the cases did apply to Sections 1(2)(a), (b) and (c) of the EPA as all these sections were drafted to adhere to the intentions behind Article 141 of the EU Treaty.

In conclusion, the Court of Appeal considered that Section 1(2)(b) of the EPA should be read to mean “work rated as equivalent with or rated higher than”, and Section 1(5) of the EPA, which sets out guidelines for comparing equivalent work, should include additional words to include a job that has been given a higher value.