North and others v Dumfries and Galloway Council

The Supreme Court has given judgment in this important case concerning the permissible scope of comparison in equal pay claims.

The Appellants were 251 women who brought equal pay claims seeking to compare their pay to that of men employed by the same local authority at different establishments. The issue whether they could legitimately rely on those comparators was decided in their favour by the employment tribunal. However, the Council successfully appealed to the EAT and the Scottish Court of Session dismissed a further appeal by the Appellants.

The Appellants appealed to the Supreme Court. They argued that they were entitled to rely on their chosen comparators under the Equal Pay Act 1970, properly construed, and that in any event that Act must be read as permitting the comparison by virtue of directly applicable EU law.

The Supreme Court unanimously allowed the appeal. Lady Hale, giving the only judgment, held that the statutory test of whether employees are “in the same employment” is intended simply to weed out those cases in which geography plays a significant part in determining terms and conditions. The test should not be used as a proxy for other elements of an equal pay claim such as whether the employees perform “work of equal value” or whether a difference in treatment is genuinely due to a material factor other than sex.

The judgment is available at:
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0046_Judgment.pdf

Dinah Rose QC and Iain Steele, instructed by UNISON Scotland, acted for the Appellants.