Redcar & Cleveland Borough Council v Bainbridge and others; Surtees and others v Middlesbrough Borough Council [2008] EWCA Civ 885 CA
equal pay | pay protection | justification
The Court of Appeal has held that arrangements to protect the pay of predominantly male groups after a job evaluation scheme were discriminatory and could not be justified.
Two councils carried out job evaluations that led to some posts, predominantly filled by men, being downgraded. The councils introduced pay protection for a specified period for the staff whose posts were being downgraded. Female staff brought equal pay claims in which they argued that they should be entitled to the benefit of pay protection.
In Redcar & Cleveland Borough Council v Bainbridge and others [2007] IRLR 91 EAT, the Employment Appeal Tribunal (EAT) said that the discriminatory treatment could not be justified. However, in Middlesbrough Borough Council v Surtees and others [2007] IRLR 869 EAT, the EAT said that the treatment could be justified.
Considering both EAT decisions, the Court of Appeal held that, in principle, pay protection arrangements that are discriminatory can be justified. The two-stage process is to ask:
- Are the arrangements discriminatory?
- If so, can the arrangements be objectively justified?
The Court of Appeal went on to say that the employer's knowledge and motives are irrelevant when considering the first question. They are relevant factors only in relation to the second question.
On the facts of these two cases, the discriminatory treatment could not be justified.
Case transcript of Redcar & Cleveland Borough Council v Bainbridge and others; Surtees and others v Middlesbrough Borough Council (on the BAILII website).
Go to HR & Compliance Centre case law stop press.
