Public Eye - Spring 2008 - Mills & Reeve

Equal pay: recent
developments in
the public sector
Charles Pigott 01223 222411
charles.pigott@mills-reeve.com
Overview
Over the past year we have begun to see
cases emerging that reflect the enormous
complexity of the equal pay issues
generated by Agenda for Change in the
NHS and the Single Status Agreement in
the local authority sector. The cases we
refer to below have been brought in the
local authority sector in the North East, but
the legal principles can readily be translated
to the public sector as a whole.
Pay protection
Pay protection (or “red circling”) is often
used by employers to protect certain
groups of workers from the immediate
reduction in pay they would otherwise
have faced as a result of the
implementation of a job evaluation scheme
(JES). Given that this can result in workers
in traditionally female jobs (like catering or
cleaning) continuing to receive less pay
than their male comparators during the pay
protection period, is this in itself a breach
of the Equal Pay Act?
The Employment Appeal Tribunal (EAT) has
come to two different decisions on this
point, in cases which had very similar facts.
Both cases involved a group of female
workers in the North East who were able
to establish equal pay claims up to the
point the council’s JES had been
implemented. However, because of pay
protection, they continued to be worse off
than their male comparators even after the
implementation date. They argued that
they should also receive the same level
of “pay protection” as their male
counterparts.
In the first decision (Bainbridge (No 1) v
Cleveland Borough Council) the EAT ruled
that the council’s pay protection scheme
could not be justified, and therefore the
claimants’ pay should be raised to the level
of the protected pay of their male
comparators. In the second decision,
announced eight months later
(Middlesbrough Council v Surtees), the EAT
reached the opposite conclusion. The only
difference between the two cases was that
in Bainbridge the council had already
conceded some of the equal pay claims,
whereas in Surtees this had not happened.
Both appeals have now been heard by the
Court of Appeal, but at the time of writing
it has not announced its decision.
Does a JES have retrospective effect?
Ms Bainbridge and her cohort of litigants
have not been idle. Not content with their
victory in their first outing, they went to
the EAT a second time. This time the issue
was whether the job evaluation scheme
introduced by Cleveland Council in April
2004 had retrospective effect. In other
words, did the fact that the JES had rated
their work as equivalent to that done by
their male comparators with effect from
April 2004 entitle them to back-date their
equal pay claims to earlier periods when
both they and their comparators were
doing comparable jobs?
In a decision announced earlier this
year the EAT ruled that a JES was not
retrospective in this sense. While the
claimants may well have had valid equal
pay claims for earlier periods, the JES was
not an automatic passport to success. They
would have to prove their claims – which
would have to be for like work or work of
equal value – in the usual way.
Back pay
While the second Bainbridge decision is
obviously helpful to employers introducing
a JES, it does not necessarily mean that
employees will not be able to bring
back-dated claims in respect of the period
prior to its implementation. The difficulties
that public sector employers currently face
in relation to back pay is graphically
illustrated by the EAT’s recent decision
involving the GMB.
GMB v Allen involves a number of women
employed by Middlesbrough Council who
considered that they had been let down
by the way the GMB had negotiated their
claims for back pay under the Equal Pay
Act. Their argument was that the union
had pushed for pay protection for the
members who stood to lose pay as a result
of the council’s JES (who were
predominantly male) at the expense of
the claims for back pay brought by their
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