The Employment Appeal Tribunal has recently handed down its judgment on a group of ongoing sex discrimination claims on the grounds of unequal pay, brought by men and women from the North East (Abbott & Others v South Tyneside MBC, Hartlepool BC & Middlesbrough). For those involved it is a stark reminder that the laws relating to sex discrimination and equal pay apply equally to both men and women.
The claims were brought against Hartlepool Borough Council, Middlesbrough Borough Council and South Tyneside Borough Council (the "Councils"). Generally there were two ‘groups' of discrimination claims. The first group consisted of a number of women who worked for the Councils in various positions. They claimed that their pay was less than the pay of male comparators who also worked for the Councils doing comparable work. It was established that the men and women worked for the same employer, under the same terms of employment and at the same grade notwithstanding the fact that they worked in different roles and at different locations.
The tribunal found that the women were being discriminated against by the Councils on the grounds of sex and were receiving less pay for comparable work. It was held that this was due to discriminatory ‘top-up' payments received by the men which were not being received by the women. The women won their cases and were offered financial settlements.
The second group of claims, which were lodged at approximately the same time as those brought by the women, were brought by men. They also argued that they worked for the same employer under the same terms of employment and at the same grade as other male workers of the Councils but received less pay as a result of their differing job roles and not being eligible for the ‘top-up' payments.
The Employment Tribunal found that the men were also entitled to have an equality clause implied into their contracts but that their compensation would only include arrears of pay from the date that the women presented their claims to the Tribunal.
South Tyneside Borough Council reached a compromise with the male claimants in respect of their compensation in March 2006, but later withdrew these offers. This left the male claimants in not only a worse position than the men who were receiving the ‘top-up' payments but also in a worse position than the women who had now received financial settlements.
The men appealed on the basis that they should have been offered the same compensation payments as the women who had won at Tribunal and for the same period of time.
The Legal Issue
In order to be able to bring a claim under the Equal Pay Act 1970 an individual needs to be able to compare themselves with someone of the opposite sex and prove sex discrimination on the grounds of remuneration. In this case the issue was therefore whether the men could compare themselves to the women who had previously been successful at Tribunal and so indirectly, via the women, compare themselves to the higher paid male employees.
The Employment Appeal Tribunal found that the men were entitled to bring ‘piggyback' contingent equal pay claims using their female comparators. This meant that the men could indirectly compare themselves with the higher paid men using the women who had been successful as comparators. The Tribunal held that the men were entitled to receive the same compensation for arrears of pay which had been awarded to their female comparators. The Tribunal explained that had the claims proceeded to a final decision the Councils would have been obliged to pay the same sums to both the men and women therefore they would not be able to discriminate against the men in any offer of a compromise by providing them with a lesser sum.
This is an important decision as it means that equal pay laws can be applied not only by women who compare themselves with men, but also by men who have jobs that are predominantly done by women, and who therefore compare themselves with better paid men.
The judgment could open the door to a further 12,000 other equal pay claims already in the Tribunal system and may therefore have far reaching consequences. It should however be noted that the Councils have stated that they are likely to appeal the decision which may bring further developments.
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