Hartlepool Borough Council v Llewellyn and other appeals EAT/0006/08

equal pay | male colleague of successful female claimant | "piggyback" claim

The Employment Appeal Tribunal (EAT) has held that a man can bring a "piggyback" claim comparing himself with a female colleague doing like work, work rated as equivalent or work of equal value who has herself succeeded in an equal pay claim.

A group of women in predominantly female jobs brought equal pay claims against councils relating to bonus schemes paid to men in predominantly male jobs. They succeeded in their claims and were paid arrears. Men working with these female claimants brought contingent equal pay claims. They argued that they should be entitled to equivalent payments using the successful women as comparators. An employment tribunal upheld their claims, but said that the amount to which they are entitled should go back no further than the date of the presentation of the comparators' claims. The councils appealed against the decision to allow the male workers to bring claims by reference to their female colleagues. The male workers cross-appealed against the ruling limiting their entitlement to payment of arrears.

The EAT rejected the councils' appeal. It used an example to illustrate that a male claimant could be entitled under s.1 of the Equal Pay Act 1970 to the benefit of a contractual term enjoyed by a female colleague who had acquired the benefit of that term only as a result of the operation of the Act. A woman (F1) and a man (M1) work alongside each other doing the same work. The man is paid £9 per hour whereas the woman, by virtue of a previous successful claim by reference to the pay of a man doing a different job (M2), is receiving £10. The term of F1's contract to which M1's contractual term is to be compared is the result of a statutory modification, but the Equal Pay Act 1970 does not distinguish between terms deriving from agreement and terms inserted or modified by statute. In addition, the EAT rejected the councils' argument that the difference in pay between M1's and F1's contractual terms is due to a material difference in their cases other than sex, namely that F1 was the beneficiary of a tribunal award and M1 was not. If it is asked why M1 is getting £1 less than per hour than F1, it would be natural to answer "because he is a man". In other words, "but for" M1's sex, he would have been entitled to the same pay as F1.

The EAT also held that the claimants' pay should not be limited to the date of the comparators' claims. Using the same example, if in 2005 F1 was awarded arrears back to 2000 (because M2 was an available comparator for her in that period), there is no principled reason why M1 should not be entitled to recover arrears in respect of the equivalent period (assuming that F1 was an available comparator for him throughout that period). If F1 had received the pay in question at the time that it fell due, M1 would have been entitled to the equivalent. It should make no difference that the amount has been received in arrears.

Case transcript of Hartlepool Borough Council v Llewellyn and others and other appeals (Microsoft Word format, 162K) (on the EAT website)

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