18 November 2011 #Employment
In the case of City of Edinburgh v Wilkinson, the Court of Session has held that claimants in an equal pay claim, who were employed in a variety of posts within the Council, including: schools, hostels and libraries, could utilise comparators working for the Council in different locations and posts. This included men employed as gardeners and grave diggers.
The Court of Session decided that these comparators were appropriate in the circumstances because they were employed on “common terms and conditions” to the claimants’ and therefore, were in the “same employment.” Interestingly, however, the court was not swayed by the fact that the claimants and comparators were subject to separate terms and conditions, and governed by different national agreements on pay and conditions for local government employees. The claimants were subject to the national agreement known as the Blue Book whereas the comparators were subject to the Green Book.
The Court of Session concluded that the claimants and comparators were not employed at the same establishment. Its view was that the various locations where the claimants worked were distinct from the Council’s other places of work – despite the fact that the Council retained central power.
In spite of this, the Court confirmed that even though the claimants and comparators were not employed at the same location, it would not impact on the issue of whether they were employed on common terms. Whether the terms were common or not would depend on the nature of the role and the duties undertaken, as opposed to their locations. Therefore, the Court concluded that as common terms existed, the men could be used as comparators.
This case demonstrates the challenges that can be faced in equal pay cases when ascertaining whether a suitable comparator exists. It also confirms that there is no requirement for claimants and comparators to be based at the same location, provided their other terms and conditions are predominantly the same.
For more information, please see: http://www.bailii.org/scot/cases/ScotCS/2011/2011CSIH70.html