The appellants were female support staff employed by the respondent local authority to work in schools and nurseries. They sought to compare themselves with male manual council workers and thus, appealed against a decision that they were not entitled to equal pay. They worked in accordance with the “Blue Book”; they were based at various schools, worked less than 35 hours a week and worked only during school terms. Comparably, the males employed by the local authority operated under the “Green Book”; they were based at specific depots, worked full time and were eligible for bonuses and supplements.

The employment tribunal held that appellants were “in the same employment” as the male workers for the purposes of the Equal Pay Act 1970 s.1 (6). They concluded that the correct test was, if the male comparators were employed at the appellant’s establishment, would they be employed under broadly similar terms in which they currently enjoyed. Consequently, the tribunal held that the male comparators were in the same employment. 39 The Appeal Court reversed this decision. They held that it was not necessary for the appellants to show a “real possibility” that the male workers could be transferred to their workplace, but under British Coal Corp v Smith [1996] 3 All E.R. 97, the appellants had to demonstrate that it was at least feasible that they might be.

However, the Supreme Court overruled the decision of the Employment Tribunal, ruling in favour of the appellants as their approach was more consistent with EU law and was in accordance with TFEU art 157. It was held that British Coal did not introduce or comment on a “real possibility” or “feasibility” test. Moreover, to conduct such a test would circumvent the objective which was to ensure equal treatment for equivalent work or work of equal value. The court noted that there are different jobs that cannot be performed in the same workplace but nevertheless are deemed as comparable. Although work is conducted at different places, it does not affect the equality of the work done. Traditionally, jobs that required physical strength were better rewarded than those requiring skill; the equality legislation sought to remove these inequalities of reward where the work involved was of genuinely equal value.

Furthermore, the “same employment” test was not intended to establish compatibility between the jobs. Such compatibility was to be determined by the “like work, “work rated as equivalent” and “work of equal value” tests. Thus, the “same employment test” should not be used. Finally, for equal pay to be deployed effectively, the difference in treatment must emerge from a “single source” which could address the difference. In this case, the difference in pay was attributable to the local authority employer, who could solve the issue, if necessary. http://bit.ly/10mKzmB