Weekly Employment Update - 21st September 2011

Supreme Court prepares to hear equal pay case

Welcome to Ashfords' Weekly Employment Update, where each week we consider recent developments in Employment and HR issues. This week, we consider equal pay issues in the context of an upcoming Supreme Court case.

Despite 40 years of equal pay legislation, allegations of pay inequality continue to reach the employment tribunals and courts.

Next month, the case of Gibson and others v Sheffield City Council will be the Supreme Court's first opportunity clarify the law in this area. The case concerns a group of predominantly female care workers and school meal supervisors who were denied the productivity bonus paid to the council's largely male street cleaners and gardeners, and who, with the bonus, were receiving up to 38 per cent more than the carers.

While Sheffield City Council has consistently accepted that the street cleaners and gardeners were carrying out work equivalent to that of their carer colleagues, it argues that there was a "genuine material factor" justifying the difference in pay that was not discriminatory.  It contends that the bonus scheme was introduced to boost productivity amongst the street cleaners and gardeners and that the performance of the predominantly female carers could not be measured or rewarded in the same way.

However, the Court of Appeal last year found in favour of the Sheffield carers.  As Lady Justice Smith observed: "Where the statistics show that pay practice has produced an adverse impact on women over a long period and where statistics are convincing, it will generally be difficult for an employer to show that the adverse impact had nothing to do with sex".

In a three-day hearing scheduled for mid-October, the Supreme Court will decide whether it agrees with the Court of Appeal's decision.  If it does, it could affect workers across the country in occupations traditionally performed almost exclusively by one sex.  It will clearly show that, although employers may feel they have a robust, operational reason for differences in pay, the inferences of sex discrimination arising from statistical evidence can be difficult to overcome.

Gibson and Others v Sheffield City Council

Ashfords LLP is regulated by the Solicitors Regulation Authority.  The information in this note is intended to be general information about English law only and not comprehensive.  It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.