Case - Robertson v. DEFRA

[2005] ICR 750, CA, Court of Appeal - Michael Ford QC
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For equal pay proceedings to come within the EC Treaty (Nice) Art.141 the pay differences between workers of different sex performing equal work had to be "attributed to a single source" and in an equal pay claim by civil servants the simple fact of common employment by the Crown was not sufficient to attribute the different terms and conditions of employment in different government departments to the Crown as the "single source".

The appellant male civil servants (R) appealed against the dismissal of their equal pay claim against the respondent government department (DEFRA). R were employed by DEFRA as executive and administrative officers. They argued that a comparison should be made between their pay and the higher pay received by two female civil servants who worked as senior personal secretaries in a different government department (DETR). Although R and the female comparators worked under different terms and conditions of employment they all had the same employer, the Crown. R brought their equal pay claim under the EC Treaty (Nice) Art.141 , because cross-departmental comparison was not available under the terms of the Equal Pay Act 1970 . The employment tribunal decided as a preliminary issue in favour of R that it was permissible for civil servants in an equal pay case to use as comparators civil servants of the opposite sex who worked in a different government department under different terms and conditions. The Employment Appeal Tribunal overturned that ruling. R submitted that (1) employment by the same employer (common employment) was sufficient for the purposes of making a comparison of pay between R and the comparators; (2) the employment tribunal had been legally correct in holding that the difference in pay between R and the female comparators could be attributed to a "single source", namely the Crown, since the Crown was the source of pay and was the body that could restore equal pay.

HELD: (1) For equal pay proceedings to come within Art.141(1), the pay differences between workers of different sex performing equal work had to be "attributed to a single source", C-320/00 Lawrence v Regent Office Care Ltd (2003) ICR 1092 applied. The focus was on the location of the body responsible for making decisions on levels of pay in the relevant employment or establishment rather than on the identification of the relevant legal source of that decision-making power. The single source attribution in Art.141 was different from the concept of common employment. Something more than the bare fact of common employment was required for comparability purposes, even though a common employer was not necessary for comparability purposes. (2) The power to negotiate and set most aspects of pay of the civil servants employed by DEFRA was delegated to that department by Transfer of Functions Orders under the Civil Service (Management Functions) Act 1992. Pay and conditions of civil servants were no longer negotiated nor agreed centrally on a Civil Service wide basis. Individual departments were free to agree most terms and conditions of employment, and rates of pay differed significantly between departments. The EAT was right to find that the tribunal had erred in law in concluding that the Crown had material control over the terms and conditions and satisfied the "single source" test, since it was the individual departments which were responsible for any inequality and which could restore equal treatment. The fact that the Crown retained a legal power after delegation, which had not been exercised over pay conditions in the particular case, did not make the Crown "the body responsible" for the actual negotiations over pay by the individual departments resulting in the pay differences complained of. The fact that the Crown could equally revoke or alter the delegation did not change that conclusion. DEFRA was the single source responsible for R's pay and conditions of employment and DETR was the single source responsible for the comparators' pay and conditions of employment. There was no single source to which R's pay and the comparators' pay was attributed. The simple fact of common employment by the Crown was not sufficient in the instant case to attribute the terms and conditions to the Crown as the "single source" responsible for determining levels of pay in both DEFRA and DETR.

Appeal dismissed.

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