Landmark equal pay case could lead to even more claims

Hundreds of female workers at Sheffield City Council could be looking at huge payouts following a landmark equal pay decision by the Court of Appeal. Most equal pay cases usually involve a pay disparity involving two or more individuals doing similar work. However this case involved women who worked as carers, care workers and school meals staff, contesting that a bonus that been made available exclusively to men in male dominated roles such as street cleaners and gardeners, amounted to sex discrimination.

The council’s case rested on an earlier decision in a similar case at the Court of Appeal, Armstrong v Newcastle upon Tyne NHS Hospital Trust. Here the Hospital Trust successfully argued that similar bonus payments had nothing to do with gender, but were paid to boost productivity. The predominantly female job roles could be measured or rewarded in a similar way the trust claimed successfully, and they were therefore unable to make similar bonuses available.
However the Court of Appeal decided in favour of the claimants setting a new legal precedent, ruling that making the bonuses available to men and not women amounted to indirect sexual discrimination. This decision overturned the Armstrong defence, which many employers had been relying on up to now to avoid similar claims. Judge Lord Justice Maurice Kay, sitting with Lady Justice Smith, ruled:

'The impossibility of applying the productivity bonus to women's work is genuine enough, but that does not remove the sexual taint from the operation of the scheme.
'The scheme has a disparately adverse effect on women's work as compared with men's work and the sexual taint is present'.

The case will be sent back to an Employment Tribunal where the council will be forced to justify the scheme on other grounds, if they are unable to (likely) they will have to award compensation to the claimants. The decision is significant as it opens a new dimension in equal pay cases where the work does not have to be "like for like", but of similar value. Such claims are now likely to arise where a working environment had a typical gender divide between the employment choices men and women made, and a pay disparity existed. This was and is typical of many Council workforces.  Employers will now be bracing themselves from a floodgate of claims having previously being protected by the Armstrong decision.
Bronwyn McKenna, UNISON Director of Organising and Membership, speaking about the ruling:
“This ruling will give other women, taking similar claims against councils across the country, hope that they too can get the fair pay and equal treatment they deserve.”


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