UKSC 45
On appeal from:  CSIH 2
North and others (Appellants) v Dumfries and Galloway Council (Respondent) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
26 June 2013
Heard on 20 and 21 May 2013
Dinah Rose QC
(Instructed by Unison Legal Services)
Ian Truscott QC
(Instructed by Glasgow City Council Corporate Services)
Robin Allen QC
(Instructed by Equality & Human Rights Commission)
LADY HALE (with whom Lord Hope, Lord Wilson, Lord Reed and Lord Hughes agree)
". . . 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 same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes. " (emphasis supplied)
The Equal Pay Act 1970 has now been repealed and replaced by provisions in the Equality Act 2010 which are intended to be of equivalent effect, but the 1970 Act continues to govern claims, such as those in the present case, which were brought before the 2010 Act came into force.
The case law so far
"The concept of common terms and conditions of employment observed generally at different establishments necessarily contemplates terms and conditions applicable to a wide range of employees whose individual terms will vary greatly inter se" (p 745F).
Terms and conditions governed by the same collective agreement seemed to him the paradigm, though not necessarily the only example, of common terms and conditions contemplated by the subsection.
"frustrates rather than serves the manifest purpose of the legislation. That purpose is to enable a woman to eliminate discriminatory differences between the terms of her contract and those of any male fellow employee doing like work, work rated as equivalent or work of equal value, whether he works in the same establishment as her or in another establishment where terms and conditions of employment common to both establishments are observed" (pp 745H – 746A).
It could not have been the intention of Parliament to require a woman to prove "an undefined substratum of similarity" between her terms of employment and his as the basis of a claim to eliminate any discriminatory difference between them.
"What therefore has to be shown is that the male comparators at other establishments and at her establishment share common terms and conditions. If there are no such men at the claimant's place of work then it has to be shown that like terms and conditions would apply if men were employed there in the particular jobs concerned" (p 526F).
The Corporation claimed that this meant that the terms and conditions of the comparators had to be the same in substantially all respects. Lord Slynn rejected this and adopted a test of broad similarity:
"The purpose of requiring common terms and conditions was to avoid it being said simply 'a gardener does work of equal value to mine and my comparator at another establishment is a gardener.' It was necessary for the applicant to go further and to show that gardeners at other establishments and at her establishment were or would be employed on broadly similar terms. It was necessary but it was also sufficient" (p 527D).
"An equality clause . . . shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor –
(a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman's case and the man's; and
(b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference."
"In the present case, the claimants and comparators are neither employed under the same terms and conditions nor in the same establishment. It is therefore necessary for the claimants to satisfy the Tribunal that if their comparators were employed at their establishment, they would be employed under broadly similar terms to those that they are employed under at present."
That, as the Court of Session later acknowledged, was exactly the right question.
"If a manual worker comparator were for any reason to transfer to do their job solely and only in a school context, which would seem an impossible suggestion, then I cannot envisage other than that they would retain core Green Book conditions, but because of the nature of the work undertaken across all educational establishments, their terms and conditions would require to be very significantly varied to make working in such locations possible" (para 32).
In her view, that passage was concerned with a worker who was transferred to do most of his work at a school but remained based at his depot. Later passages in Mr Archibald's evidence hypothesised a manual worker based at a school:
"Conceivably some new, hybrid, 'handyperson' type job incorporating all the tasks of the comparators could be created – but as to what the terms of such a job would be would be difficult to assess – if it was to remain on Manual Worker terms, because of the job content then the Green Book terms any such postholder would be on (whether doing a hybrid job or his/her current job) would not be similar to those s/he currently enjoys because so many of the provisions of the Green Book which s/he now enjoys would no longer be apt. I cannot imagine even in the hypothetical context the job or jobs being able to remain similar to what they would be now – they simply would not fit into any JES manual worker profile – and that would have an effect on their terms and conditions" (para 36).
Hence the claimants had not established that, if the comparators were based at the same establishment as the claimants, the comparators would still have been employed on Green Book terms and conditions. The appeal was therefore refused, not because the employment tribunal had applied the wrong legal test, but because the evidence did not support the conclusion on the facts.
"What has to be considered is whether if a manual worker, in casu a gardener, refuse collector, or grave digger, whether hypothetically likely or not, were to be located in the claimant's establishment for the performance of his current job he would continue to be employed on terms and conditions applicable to manual workers".
Lady Paton distinguished the case from the present one, because the tribunal had analysed the evidence relating to the terms and conditions of work for the hypothetical transposed worker, and found it not inconceivable that he could be assigned to work at one of the claimants' establishments and that, if so, he would still be employed on Green Book terms. But both she, at para 49, and Lord Hardie, at para 54, disagreed with Lord Eassie's further observation, in para 35, that it was:
"erroneous (perhaps particularly in an equal value claim) to consider whether, on the transfer of the male comparator hypothetically to the woman's establishment, adjustment might be made to his terms and conditions to dovetail more closely with those of the female claimant".
"It is not evident from the wording of Article 141 EC that the comparison must be confined to one and the same employer. Its case law demonstrates that the Court has consistently stood by its requirement that for a finding of direct discrimination there must be a clear difference in pay vis-à-vis male co-workers working in the 'same establishment or service' (see, inter alia, Defrenne v Sabena (Case 43/75)  ICR 547, 567, para 22) or that the difference in pay must have its origin in legislative provisions or provisions of collective labour agreements (Defrenne, para 21)." (para 46)
"The feature common to the three categories is that regulation of the terms and conditions of employment actually applied is traceable to one source, whether it be the legislature, the parties to a collective works agreement, or the management of a corporate group" (para 51).
"It is clear from the foregoing that the direct effect of article 141 EC extends to employees working for the same legal person or group of legal persons, or for public authorities operating under joint control, as well as cases in which for purposes of job classification and remuneration, a binding collective agreement or statutory regulation applies. In all these cases the terms and conditions of employment can be traced back to a common source" (para 54).