Trafford Council women workers’ equal pay claim

18 May 2012

The Employment Appeal Tribunal has today handed down judgment in Mrs S Cooksey and others v Trafford Borough Council UKEAT/0255/11/SM (2012). In this case the women workers at Trafford Borough Council have successfully defended the Council’s appeal against earlier Employment Tribunal findings which had rejected the Council’s arguments to justify differences on the basis of “genuine material factor” defences.

Background

The Claimants, who were female manual workers, claimed that they were paid less for work of equal value, when compared to male manual workers who were employed in parks and countryside, cemeteries and crematoria, street cleaning, street lighting and highways, particularly in relation to productivity bonuses introduced in the 1960s and 70s.

The Claimants brought claims for Equal Pay before the Employment Tribunal. The Employment Tribunal held a Pre-Hearing Review between October and December 2010 and rejected the Council’s argument that the reason for the difference in pay was a genuine material factor, which was not the difference of sex. The Council subsequently appealed the decision to the EAT.

The EAT appeal

The Claimants successfully defended Trafford Council’s appeal against the original decision to reject the Council’s defence in respect of the bonus and attendance allowances which had been paid to the Claimants’ comparators, whilst the EAT concluded that the Council could objectively justify the payment of on call allowances to male comparators.

The EAT rejected the Council’s argument that the Employment Tribunal had not properly considered its defence that the reason for the difference in pay was not tainted by sex in relation to the bonus and attendance allowances, argued in reliance on Armstrong v Newcastle upon Tyne NHS Hospital Trust [2006] IRLR 124 and subsequent authorities.

An appeal brought on behalf of one of the GMB Claimants, Mrs Cooksey, who had worked as a Caretaker also succeeded. The Employment Tribunal had held that Mrs Cooksey could not show disparate impact on the grounds of gender, as the Caretaker group itself had been dominated by males.

The EAT determined that the Employment Tribunal had erred when considering the appropriate comparison pool of workers in relation to disparate impact. The EAT concluded that the Employment Tribunal had not applied its mind properly as to why it had limited the pool to the Caretakers alone, as opposed to combining the Caretakers with other Claimant groups for comparison purposes.

The EAT also concluded that the Employment Tribunal had not considered disparate impact in accordance with the Court of Appeal decision in Home Office v Bailey [2005] ICR 1057. The EAT therefore remitted the question of disparate impact back to the Employment Tribunal to reconsider both the issues of the appropriate pool and whether adverse disparate impact on the grounds of gender could be shown.

Kate Stone of Garden Court North Chambers (who was led by Thomas Linden) represented the UNISON claimants and Mrs A Wedgbury.