Representation

In September 2007 the Court of Appeal dismissed an appeal "for essentially the same reasons as did the EAT". The Court of Appeal ruled that a woman who can base an equal pay claim by comparing herself with a man placed by a JES (job evaluation scheme) in the same grade can also base her claim on comparison with a man in a lower grade than her if he receives more pay. As the Court of Appeal said "It would be surprising if she cannot .........", essentially on the basis that when considering equality the greater includes the lesser (see Redcar & Cleveland Borough Council v Bainbridge & Ors [2007] EWCA Civ 910, reported at [2008] ICR 238).

Authority for the propositions that:-

• men and women are entitled to equal pay for the same work or work rated as equivalent unless there is a "genuine material factor" (GMF) explaining the difference (and if a GMF applies there is no discrimination on grounds of sex because by definition the difference has been justified on non-sex grounds);
  
• in an equal pay claim where the (male) comparators are employed in work which enables a productivity scheme to be adopted and which, as a consequence, brings savings and greater efficiency to the work being carried out, and that opportunity does not exist in relation to other (female) employees in the same "grade", an employer is not under an obligation to increase the female employees' pay to bring it up to the same level as that of the male comparators;
  
• it is not necessarily incumbent upon employers when introducing a productivity scheme to conclude that they have to introduce a similar scheme, or a scheme resulting in identical pay, for all other groups of workers who could properly be the subject of such a scheme. The mere fact that a productivity incentive scheme could have been adopted in respect of other claimant work groups, does not of itself establish that a GMF defence will fail

editor's note:
a further development in this litigation should be noted - the EAT held in March 2007 (in Bainbridge & ors v Redcar & Cleveland Borough Council (No 2) EAT 2007 reported at [2007] IRLR 494) that:-

1. employees whose jobs are rated as equivalent under a job evaluation scheme cannot claim compensation for periods before the jobs were rated as equivalent.
   
2. the fact that an employee has failed in an equal pay claim does not automatically prevent her from bringing another claim using a different comparator. The EAT recognised that there is potential for abuse by naming multiple comparators, but said that that will have to be dealt with by "a robust application of the Tribunal Rules".

For relevant general notes go to Sex discrimination/equal pay and terms of employment/work of equal value and/or Sex discrimination/equal pay and terms of employment/work rated as equivalent