South Ayrshire Council v Morton [2002] IRLR 256
The scope of comparisons in Equal Pay Act cases has been the subject of numerous Tribunal decisions recently. At issue is whom the Applicant can choose as her Comparator so as to compare her pay with his in an equal pay case. The trend of these cases has been to broaden the scope of the comparisons. The recent Scottish case of South Ayrshire Council v Morton has extended the scope still further.
Ms Morton's case is one of 600 of originating applications lodged by primary school teachers in Scotland who are seeking to compare their pay with the pay of secondary school teachers. The primary school teachers are employed by different education authorities to the secondary school teachers. Despite the different employers, the pay scales of both primary and secondary teachers are established by the Scottish Joint Negotiating Committee (SJNC) established under the Education Scotland Act. The SJNC determines the pay scales: the Education Authority implements the scales as they wish.
South Ayrshire Council has resisted Ms Morton's Equal Pay Act claim on the basis that although they employ her, they have no control over the pay of her comparator who is employed by a different authority. However, the Employment Tribunal, the Employment Appeal Tribunal and now the Inner House of the Court of Session (the Scottish equivalent of the Court of Appeal) have all upheld the validity of Ms Morton's comparator.
There are two reasons given for this. Firstly, under European and UK equal pay law (Article 141), it has already been established that cross-employer comparisons can be made where the applicant and comparator are employed 'in a loose and non-technical sense in the same establishment or service'. This, according to the Court of Session in Morton, would cover not only education authorities in Scotland, but an applicant and comparator employed in the same branch of a public service subject to a uniform system of pay and conditions set by a statutory body. Secondly, and more radically, the Inner House rely on an early decision of the European Court of Justice in Defrenne v Sabena (1976 ECR 455) to decide that the scope of Article 141 covers any situation where the pay of the applicant and comparator is governed by an underpinning statutory regime or national collective agreement, whether that collective agreement has statutory underpinning or not.
The implications are enormous.
The European Court of Justice will shortly be considering the same issue in Lawrence v Regent Office Care Ltd ([2000] IRLR 608) and Allonby v Accrington and Rossendale College (2001 IRLR 364). We already have the Advocate General's opinion in Lawrence which is extremely encouraging. We must wait for the European Court of Justice's judgment but it seems likely that cross employer comparisons will be acceptable where, to use the words of the Advocate General in Lawrence, the 'regulation of the terms and conditions of employment actually applied is traceable to one source'.