Edinburgh Council equal pay settlement shows courts 'less sympathetic' to technical arguments, expert says
A multi-million pound settlement to be paid to hundreds of female Edinburgh City Council workers is further evidence that courts are becoming "less sympathetic" to employers who try to evade equal pay claims through the use of complex legal arguments, an expert has said.13 Jan 2012
Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, said that the latest in a "long line" of public sector equal pay claims was settled before the council was able to argue whether there was an objective reason, that had nothing to do with gender, why female workers in administrative roles were paid differently to male workers in manual roles.
Similar cases have seen public sector employers advance jurisdictional arguments, or try to prove that female workers had brought their claim outside of the statutory time limits, he said.
An employment tribunal found in favour of the women - who worked in social care, as classroom assistants and in clerical jobs - in 2008. The Court of Session upheld the tribunal's decision last year.
City of Edinburgh Council said that it had reached a settlement with Fox Cross Solicitors, which represented 400 of the workers, and that it would withdraw a further appeal to the Supreme Court. It said that it planned to seek a similar outcome with the other solicitors involved.
Councillor Phil Wheeler, Convener of Finance and Resources with the council, said that the case had been "a difficult process for all sides".
"When considering claims we had to consider and balance two important issues. One is meeting our legal and moral obligations to staff who may have been disadvantaged by historic unequal pay. The second is our responsibility to use public money wisely," he said.
The Council implemented new pay and conditions for all workers in October 2010, but said that some historic equal pay claims remained as a result of the 'single status' agreement it entered into with workers in 1999.
In its November judgment, the Court of Session said that the women were entitled to use male council employees working in manual roles as comparators although historically they had been employed under different terms and conditions.
In order to bring an equal pay claim, female workers must be able to show that they are working in the same 'establishment' as the male employees performing work of equal value. Alternatively, the two sets of employees must work under a collective set of terms and conditions.
Employment law expert Selwyn Blyth said that although the women were unable to show the first point, the Court of Session said that there was a common source for the pay terms so the claims could proceed.
"Courts and tribunals are becoming increasingly less sympathetic to attempts by employers to avoid their equal pay obligations by advancing these complex preliminary arguments," he said. "If the case is dismissed on those grounds, the employer does not have to argue the substantive point - is there an objective reason, that has nothing to do with gender, why these workers performing roles of equal value–have historically been paid differently?"
He said that the Council appeared to have done a costs benefits analysis and decided it was not a "proper use of public money" to appeal this preliminary point further.
"It is important to bear in mind that these cases cost a lot of money to take to court - although obviously they cost a lot of money to settle as well," he said.
Last year an equal pay test case involving dinner ladies and female care workers with Sheffield City Council, who had historically been excluded from a bonus system made available to male gardeners and street cleaners, was settled just before it was due to be heard by the Supreme Court. The council in that case had argued that the bonuses had nothing to do with gender but were paid to boost productivity.
Blyth had previously told Out-Law.com that the Sheffield City Council case was a "missed opportunity" for the court to look at what he termed an "ambiguous, difficult area" of employment law. However, he said a similar case would likely reach the Supreme Court if in future a union tries to push for too high a settlement or the employing council felt it had a stronger case on the substantive issues.
Although indirect sex discrimination can occur where an apparently neutral provision is applied in a way that puts workers of one sex at a particular disadvantage compared to the other, it is a defence if an employer can show that the provision is objectively justified.
Carol Fox of Fox Cross Solicitors said that other clients of the firm had outstanding claims with other employers including Glasgow City Council and South Lanarkshire Council.
"We hope that other councils will follow this lead and make the long awaited payments due to low paid female workers," she said.
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