South Tyneside Metropolitan Borough Council v Anderson: [2007] EWCA Civ 654

CA: Mummery, Sedley LJJ and Lightman J: 28 June 2007

The claimants were employed as school support staff in the appellant council's community schools, their rate of pay being determined by a collective agreement applicable to local government employees. In their claims for equal pay under section 1 of the Equal Pay Act 1970 their chosen comparators were men on the same grade as the claimants, and therefore undertaking equivalent-rated work with the council, though not in schools, whose earnings were significantly higher because of bonus payments. The employment tribunal found that the bonus payments were either shams or unjustified; and that, although the claimants were not employed at the same establishments as their comparators, they were employed by the same employer at different establishments at which common terms and conditions of employment were observed, within the meaning of section 1(6), so that they were entitled to equality of pay with the comparators under section 1(2)(b). The Employment Appeal Tribunal dismissed an appeal by the council, declining to deal with the council's submission that, where claimants' contractual arrangements were dealt with by school governing bodies under the School Staffing (England) Regulations 2003 rather than by the council directly, those claimants could not show that they had common terms and conditions as the comparators.

The council appealed in respect of the claims of claimants whom it did not employ directly.

The Court of Appeal held:
"Common" as applied to terms and conditions of employment in section 1(6) of the Equal Pay Act 1970 meant sufficiently similar for a broad comparison to be made by the employment tribunal on the evidence, and, on that basis, the employment tribunal had been entitled to find, on the facts before it, that the claimants and their equivalently-graded comparators were employed by the council at separate establishments at which common terms and conditions were observed, so that they were to be treated as in the same employment. Even if the comparators were employed at the schools, they would be employed on the same grade as the claimants, since any relevant appointment of school support staff by a school governing body, under regulation 11(1) of the School Staffing (England) Regulations 2003, would be under a contract of employment with the local authority, and, under regulation 15(3), the applicable grade would be that appropriate to local government employees, and it would be perverse for the governing body to select an inappropriate pay grade, and the claimants and comparators would, therefore, have had common terms and conditions of employment. Accordingly, together with the inequality of pay, there was inevitably a breach of the implied equality clause.

The appeal was dismissed.

Appearances: John Bowers QC and Seamus Sweeney (Solicitor, South Tyneside Metropolitan Borough Council, South Shields) for the council; Philip Engelman (Stefan Cross, Newcastle-upon-Tyne) for the claimants.