Reading Borough Council v James & Ors, Court of Appeal - United Kingdom Employment Appeal Tribunal, June 07, 2018, [2018] UKEAT 0222_17_0706

Resolution Date:June 07, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Reading Borough Council v James & Ors
 
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Copyright 2018

Appeal No. UKEAT/0222/17/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 17 April 2018

Judgment handed down on 7 June 2018

Before

MRS JUSTICE SIMLER DBE

(PRESIDENT)

SITTING ALONE

APPELLANT

READING BOROUGH COUNCIL

MS T JAMES & OTHERS

RESPONDENTS

Transcript of Proceedings

JUDGMENT

UKEAT/0222/17/JOJ

APPEARANCES

SUMMARY

EQUAL PAY

This appeal raises a short point of law concerning the temporal scope of a pay comparison in proceedings based on equal pay for work of equal value brought under the Equal Pay Act 1970.

The Claimants sought arrears of pay dating back to 2002, comparing themselves with two comparators in post from that time and found to be doing work of equal value to the women. With effect from 6 April 2006 Mr Coleman was promoted to a different role; and with effect from 1 May 2011 Mr Peever's role was assimilated onto a Single Status Scheme at a lower rate of pay. There were other male highways operatives who remained employed and were available as comparators for equal pay purposes. The Respondent argued that the Claimants could not compare themselves with Mr Coleman for the purposes of calculating their arrears claims from 6 April 2006 onwards, or Mr Peever from 1 May 2011. The ET rejected those contentions; and the Claimants' losses were assessed by reference to Mr Coleman's pay from 6 April 2006, frozen as at 5 April 2006; and Mr Peever's pay at a level frozen prior to assimilation.

The Respondent appealed. It accepted that where a comparator is in post during the whole period of comparison then the sex equality clause operates with respect to that individual, but argued the position is different if he leaves during the comparison period, and other potential comparators remain because he is no longer an individual who ``is employed'' on work of equal value (see s.1(2)(c) Equal Pay Act 1970). The reasoning in Sorbie v Trust House Forte Hotels Ltd [1977] ICR 55 and Sodexo Ltd v Gutridge [2009] ICR 70 (EAT) could be distinguished. A statutory modification occurred by reason of the continued employment of actual but different male highways operatives who were available as comparators.

The appeal failed and was dismissed:

(i) There is no temporal limitation or other provision in the Equal Pay Act that restricts the continued implication of the equalised term in any way.

(ii) Once the necessary conditions are satisfied a presumption that there is an equality clause to be read into the contract arises and the less favourable term of the woman's contract is treated as modified so as not to be less favourable. In other words, the implied contractual right to pay at the higher rate referable to Mr Coleman and/or Mr Peever crystallised in 2002 and has and will continue until the women's contracts are validly varied or terminated.

(iii) No operative variation occurred (bringing an end to the equality clause modification based on these comparators' earnings) because a different (albeit potentially valid) comparator continued in post while the chosen comparator did not. On Mr Coleman's promotion, the necessary conditions for the automatic operation of an implied equality clause in the Claimants' contracts based on the other male highway operatives cannot have been satisfied because no term in the Claimants' contracts was less favourable than the terms of the other male highways operatives' contracts. It was the other way around: the Claimants already had statutorily implied contractual rights to higher pay by 2006 when Mr Coleman was promoted.

(iv) The argument is unsupported by authority. It is inconsistent with Sorbie and Sodexo: once contractual rights to equal pay crystallise, those rights continue until lawfully varied or terminated. The focus is on lawful changes to the women's contracts and not on the fortuitous continued presence or otherwise of the chosen comparator in the same role.

THE HONOURABLE MRS JUSTICE SIMLER DBE

Introduction

  1. This appeal raises a short point of law concerning the temporal scope of a pay comparison in proceedings based on equal pay for work of equal value brought under the Equal Pay Act 1970.

  2. Following a stage 3 equal value hearing earlier in these proceedings, the Employment Tribunal held that a number of female employees of Reading Borough Council (``the Claimants'') were employed, with effect from a date in 2002, on work of equal value to the job performed by Andrew Coleman, a highways operative. Although material factor defences were raised by the Council (referred to as the Respondent for ease of reference) none was established despite the fact that Mr Coleman was uniquely paid at an average rate that was higher than other male highways operatives who were also performing work of equal value and paid at a higher rate than the Claimants during the same period, though not as high as Mr Coleman.

  3. Two particular Claimants, Ms Chan and Mrs Janes, brought claims based on Mr Brian Peever, a tractor driver, as their comparator. It has been established in their cases too, that between a date in 2002 and 22 July 2011 when their employments came to an end by reason of redundancy, they performed work of equal value to that performed by him.

  4. The Claimants all sought arrears of pay dating back to 2002. Both Mr Coleman and Mr Peever were in post from that time doing work that was of equal value to the women. However, with effect from 6 April 2006 Mr Coleman was promoted to the position of senior highways operative, a different role. There is no suggestion that this promotion was in any way related to the claims or done to avoid the operation of the Equal Pay Act 1970. The other male highways operatives remained employed thereafter and were available as comparators for equal pay purposes. The Respondent argued that the Claimants could not compare themselves with Mr Coleman for the purposes of calculating their arrears claims from 6 April 2006 onwards. The Claimants disagreed and calculated their losses by reference to Mr Coleman's pay from 6 April 2006, frozen as at 5 April 2006. In the case of comparisons with Mr Peever, his job was assimilated onto a Single Status Scheme introduced by the Respondent, at a lower rate of pay with effect from 1 May 2011, and the Respondent contended that the arrears of equal pay claims should be assessed by reference to his reduced pay from that date. Employment Judge Gumbiti-Zimuto (sitting with members Mr Cameron and Ms Edwards agreed with the Claimants in both respects by a judgment promulgated on 15 July 2017.

  5. The Respondent challenges that judgment as wrong in principle in relation to each comparator relied on. It accepts that where an individual in the comparator role is in post during the whole period of comparison then the sex equality clause operates with respect to that individual; but contends the position is different if he leaves that post during the comparison period, and other potential comparators remain. Thus, although the Claimants were entitled to rely on the comparison with Mr Coleman whilst he remained in post, once he was promoted, he was no longer an available comparator for them because he was no longer an individual who ``is employed'' on work of equal value (see s.1(2)(c) Equal Pay Act 1970). In reaching the contrary conclusion, the Respondent contends that the...

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