Issue 87 (March 2004)

Contents

In the news
Older...but still normal
Take notice when you're dismissed
It's a...baby!
Pay up equally
But compared with whom?
A dressing down
Part-time pensions

But compared with whom?

In equal pay cases, applicants have to show (among other things) that the difference in pay that they're complaining about can be attributed to a 'single source' (Lawrence & Orsv Regent Office Care Ltd & Ors). In other words, that there is just one body that is responsible for the problem and which can do something about it.

In Department for Environment, Food and Rural Affairs v Robertson and ors (IDS Brief 750), the Employment Appeal Tribunal (EAT) decided that male civil servants in Defra could not compare themselves with female civil servants in another government department.

What was the lead up to the case?

Over the previous ten years, the applicants had been moved from one department to another as a result of various mergers and reshuffles. Unfortunately for them, the way in which terms and conditions were negotiated also changed.

For many years, all pay bargaining was administered centrally by the Treasury, but this ended in 1995, when responsibility was delegated to individual departments. The question, then, was whether the individual departments constituted separate employers or whether one body remained that was responsible for pay.

What did the tribunal decide?

The tribunal decided that the Crown employed all civil servants.

However, because of the decision in Lawrence, the tribunal went on to say that the claimants still had to show that both they and their comparators were under the control of the same body that was responsible for the inequality in pay between them. And that that body could remedy it.

So was the Treasury still basically in overall control?

The tribunal thought it was because it still retained the power to remedy any inequalities in terms and conditions of employment. And, more importantly, it decided that it was responsible for any inequalities.

The tribunal was satisfied, therefore, that the Treasury was the body that pulled together all the various departments into one establishment.

This conclusion, they said, was within the meaning of Article 141 which says that men and women should be paid equally for work of equal value. And, they said, it's in line with the ECJ decision in Defrenne v Sabena (No 2), which says that applicants can compare themselves with someone who works in the 'same establishment or service, whether public or private.'

But what did the EAT make of that decision?

The EAT agreed with the tribunal that the applicants had to show two things - that they worked for the same employer as their comparators; and that the employer could resolve the inequality in pay between them.

But that was where the two parted company because the EAT said that although the Treasury has overall budgetary control, individual departments fix terms and conditions and are responsible for any inequalities.

In other words, there was no single source to which the difference in pay between the applicants and their comparators could be attributed.

Could the Prime Minister be the single source?

The EAT also rejected a new argument put to it - that the Prime Minister was the single source. When the new pay structure was introduced in the 1990s, certain responsibilities were transferred over to him, but in March 1996 these were delegated to individual government ministers.

The applicants tried to argue that the Prime Minister still retained the powers regarding pay, holidays and working hours but the EAT disagreed.

Will there be an appeal?

Perhaps not surprisingly, the applicants have already lodged an appeal, so watch this space for future developments in this case.