A long-running equal pay claim, brought by a group of women dinner ladies and carers working for Sheffield City Council, has been settled for an undisclosed sum shortly before it was due to be heard by the Supreme Court (Gibson and others v Sheffield City Council).
The women claimed that they were being paid less than their male comparators, who were street cleaners and gardeners. The gardeners and street cleaners, who were predominantly male, were paid up to 38 per cent more than the care workers, who were predominantly female. The Council accepted that the female claimants performed work rated as equivalent to that of their male comparators for the purposes of the Equal Pay Act 1970. The question was whether the Council was obliged to provide an objective and gender-free reason why the female workers were paid less than their male comparators.
In March 2008, the Employment Tribunal (ET) dismissed the women’s claim, accepting the Council’s argument that the difference was explained by the fact that the male workers received a genuine productivity bonus, introduced some 40 years earlier, and that the reason the women had not received a similar bonus was because their work was not capable of being incentivised in the same way, not because of their sex. Accordingly, even though the bonus scheme caused a significant disparate impact, there was no requirement for the Council to justify objectively the difference in pay.
The women appealed against the ET’s decision on the ground that the evidence of disparate impact on their group was so strong that the burden should have passed to the employer to justify the pay difference. In February 2009, the Employment Appeal Tribunal (EAT) rejected their argument. HHJ Peter Clark said, “Even where there is disparate impact which has an adverse effect on the women’s group it remains open to an employer to prove that the pay differential is not sex tainted.” It was open to the ET to find, on the facts, that the difference in pay was not gender-related but arose because a productivity bonus was not appropriate for the carers.
The women took their case to the Court of Appeal, which last year ruled in their favour. The Court held that where there is material evidence to demonstrate that a group is in fact being adversely affected on gender grounds, the employer is obliged to justify the pay arrangements. The Council was required to show objective justification for the productivity bonus predominantly paid to male workers and so the case was remitted back to the ET for reconsideration. The Council launched an appeal to the Supreme Court.
Whilst the Supreme Court will not now have the opportunity to rule on this case, thus providing guidance on the correct approach in such circumstances, the Court of Appeal’s ruling will still be significant for women bringing equal pay claims against other local authorities and the NHS.
Employers who have not already done so are advised to carry out a gender pay audit and to ensure that any discrepancies are remedied so as to reduce the risk of equal pay claims in the future. Contact <<CONTACT DETAILS>> for assistance.