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Issue 4 (October 1996)

UK Government could face Euro fines over Consultation Regulations
EAT slashes compensation payments
Redundancy payable after fixed term ends
Bullying can be sex harassment
Industrial pressure or industrial action?
Part-time pensions appeal fast tracked
Disability discrimination
Heaven knows, anything (doesn't) go
Council's attempt to cut pay was unlawful

Council's attempt to cut pay was unlawful

Lord & Others v Knowsley Metropolitan Borough Council (Industrial Tribunal August 1996, unreported)

An employer cannot impose agreements on employees to exclude their statutory employment rights an Industrial Tribunal in Liverpool has reaffirmed. Knowsley Council's attempts to cut the pay of female staff was an unlawful breach of the Equal Pay Act which over-rode the agreement of the majority of staff to the cuts.

A number of councils were eagerly awaiting the outcome of this case in the hope that they could follow Knowsley's wage cutting path. UNISON's success in this case is a shot across their bows.

IT adopted the approach of the House of Lords in Ratcliffe v North Yorkshire County Council in deciding that a local authority employer could not reduce the terms and conditions of part of its workforce to match the private sector when these worse conditions were due to sex discrimination and job segregation in the labour market.

In Lord, Knowsley Council wanted to cut overtime rates to the home carers for evening, weekend and bank holiday work. When the staff would not agree the council said it would terminate the home carers' existing contracts and re-employ them on the new terms. Faced with this threat the majority voted at a mass meeting to accept the changes. This was confirmed in writing by the union.

Thompsons were instructed by UNISON and 54 out of approximately 180 home carers took IT cases complaining that the equality clause in their contracts (implied in all employment contracts by the Equal Pay Act 1970) had been breached.

A job evaluation scheme carried out in the mid-1980s placed home carers on Grade 5 with several other local authority jobs including refuse drivers and school caretaker level 1. The council conceded that the (predominantly female) home carers no longer enjoyed the same overtime rates as the (predominantly male) refuse drivers and caretakers. The legal burden was on the council to show that the reason for this new difference was not due to a difference of sex between the home carers and the male comparators (the so-called "material factor" defence).

The council argued that the service had to be reorganised and staff paid rates of pay comparable to the private sector. The IT rejected this argument.

The tribunal held that: "In the world outside the respondent's organisation, such is the vulnerability in the labour market of the women who do the work of carers that it is paid less than the respondents agreed the work was worth; that was why they, too, decided to pay less for it. We could not regard that reason as reflecting a factor which is not the difference of sex. The women were paid less than the men because their equivalent work attracts lower pay for the women who do it elsewhere".

The IT concluded that the council could not rely upon the home carers' agreement at the mass meeting to vary their contracts. "The applicants agreed the changes to their contracts, individually and by their representative acting for all. They did so because they were told that they would be dismissed if they did not. They are low-paid women in a market unsympathetic to them. Their agreement to the new arrangements did not amount to a genuine material factor which was not the difference of sex. They agreed to what was impermissible; the provisions of the Equal Pay Act supercede their agreement."