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LTL 24/12/2009, Employment Appeal Tribunal (Scotland) - Jane McNeill QC, Ian Truscott QC
EAT PROVIDES FURTHER CLARIFICATION ON SECTION 1(6) OF THE EQUAL PAY ACT 1970 AND THE ARTICLE 141 DOCTRINE OF SINGLE SOURCE: ANOTHER WIN FOR CLAIMANTS
The Employment Appeal Tribunal (Lady Smith) handed down its judgment in the equal pay multiple, City of Edinburgh Council v. Wilkinson and others, on 19 May. The Claimants were successful both in upholding the Employment Tribunal’s decision and on their cross-appeal. Jane McNeill QC appeared for the Wilkinson group of Claimants and Ian Truscott QC for the Respondent employers.
The EAT allowed the Claimants’ cross-appeal against the finding of the ET on the meaning of the words "same establishment" in section 1(6) of the Equal Pay Act 1970. "Same establishment" did not mean the same geographical work location. "Same establishment" should be given a broad and non-technical meaning in accordance with Article 141. It was to be construed taking into account the right which was to be protected, in this case the right to equal pay. Where it was fair and reasonable to regard a particular identifiable group of employees as being a single establishment for comparison purposes in an equal pay claim and where an employer constituted a single undertaking, the presumption that the undertaking was the "same establishment" would only be displaced if the facts demonstrated subsets of the employers’ operation which ought properly to be regarded as separate establishments. In the current cases, where all the Claimants and comparators were involved in delivering the Council’s core statutory services, the "same establishment" meant the Council itself.
The EAT upheld the decision of the ET that the Claimants (former APT&C workers) and their comparators (former manual workers) were employed on common terms and conditions (Leverton), even though the pay and grading structures required by single status had not yet been implemented. They were all employed subject to the Red Book (equivalent to Green Book in England and Wales). In European law terms, they were employed in the same service and subject to a single source. The EAT rejected the employer’s argument that single source did not apply where the Claimants and their comparators were all employed by the same employer.
Lady Smith further reconsidered her approach to BCC v. Smith and departed from her earlier decision in Dumfries and Galloway Council v. North, in which she had held that there was a requirement to show that there was a real possibility of a comparator being employed at the Claimants’ establishment.