Contents

Welcome to our first edition
Employers: duty to consult
Parental Leave Directive
New legislation
What is industrial action?
Bank nurse is an employee
EAT blocks attempt to hurdle two year barrier
It's good to talk...and that's official
Who is the comparator?
Do your rights survive the transfer?
Brink of a breakthrough?

Who is the comparator?

British Coal v Smith, House of Lords, May 1996
Scullard v B.J. Knowles and Southern Regional Council for Education and Training (1996) IRLR

With whom is an Applicant in an equal pay case entitled to compare herself? Given the structure of the Equal Pay Act 1970, it is perhaps hardly surprising that there has been so much litigation on the scope of S. 1(6) of the Act which allows comparison between men and women "in the same employment".

"Men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the smae establishmeent or establishments in Great Britain which include that one and and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes."

The House of Lords has been considering the meaning of common terms and conditions in the long running case of British Coal Corporation v Smith and Others. Industrial Tribunal proceedings were lodged over 10 years ago.

The women, who were cleaners and canteen workers, are seeking to make comparisons with clerical workers and surface mineworkers at over 47 BCC sites.

There was no dispute between the parties that the women could compare themselves to clerical workers and surface mineworkers at their own collieries, but cross colliery comparisons were challenged by BCC. The IT considered the pay and bargaining structures since nationalisation in 1947 and the terms and conditions of all the categories of worker cited in great detail.

They found as a preliminary issue that each of the four categories of worker were in the same employment as their colleagues of the same description at different mines even though there were some local variations resulting from differences in underground mineworkers' pay and differing concessionary fuel rates at each site.

BCC challenged the IT decision. The House of Lords has now upheld the Tribunal's decision applying and reaffirming the test set out in Leverton v Clwyd County Council [1989] A.C. 706 that a broad comparison should be made. It is "far too restrictive" a test to require identical terms and conditions subject to a de minimis test and the Tribunal was correct in establishing "a broad commonsense approach".

The House of Lords' judgment reinforces the importance of establishing facts at the Industrial Tribunal upon which findings can be made, and the difficulty in overturning tribunal decisions based on fact where the test applied is a broad comparison.

The cases will now be returned to the IT to assess whether the work of Mrs Smith and her colleagues was of equal value to their permitted male comparators.

Meanwhile the EAT in the case of Scullard has plugged a significant gap and extended the scope for comparison in the public sector.

In this case Mrs Scullard was employed by the Southern Regional Council for Education and Training, which was one of twelve such regional CETs. All 12 units are supported and funded by a branch of the Department of Employment and Education but could not be said to be "associated employers" because they are not "companies" within the definition of the Companies Act 1985.

The Industrial Tribunal therefore decided that Mrs Scullard could not compare her pay to that of her male counterparts in the other Regional CETs, all of whom were paid more than her.

The EAT ruled that the restriction of comparisons to "associated employers" in S.1(6) should be displaced and yield to the paramount force of Article 119 of the Treaty of Rome which allows a wider class of comparator between others employed "in the same establishment or service".

This decision could have profound consequences in the public sector, including where services have been contracted out.