Scotland’s Supreme Civil Court finds Council’s pay protection scheme discriminated against women
With a view to implementing fair and non-discriminatory pay structures, Scottish local authorities engaged in a process of merging terms and conditions of manual workers and so called ‘APTC’ (Admin, Professional, Technical and Clerical) staff. As part of the process of implementation Local Authorities provided 3 years of pay protection to those suffering a drop in wages under the new pay structure.
Glasgow City Council staff challenged the pay protection arrangements as simply continuing the discrimination against female dominated APTC staff who had previously been underpaid because of bonus arrangements for male dominated manual workers. They asserted that these APTC staff would have suffered a drop in pay and therefore received pay protection, but for those arrangements. The Employment Tribunal held that the pay protection arrangements were discriminatory but objectively justified. That decision was overturned on appeal to the Employment Appeal Tribunal (please click on the following link: Waving Goodbye to Second Wave Claims).
The EAT decision was then appealed to the Inner House of the Court of Session who held that the ET had asked itself the wrong question – the issue was not whether the payment of pay protection to the bonus earners was justified. The issue was whether the failure to extend pay protection to those previously discriminated against was justified i.e. “whether excluding the claimants was reasonably necessary to meet a legitimate aim.”
On the correct question the Council had failed to adduce any relevant evidence –
“There was no evidence before the ET that the appellant had even considered the position of the claimants. No consideration was given to the possibility of offering pay protection to the claimants and no material placed before the ET to attempt a justification of the exclusion on the basis of cost was advanced (not surprisingly since the issue had not even been considered). As to the subsidiary reason of avoiding becoming uncompetitive, it appears that little in the way of evidence or submissions was advanced to the tribunal in support of this point. … As the EAT noted, this might have provided objective justification if it could be shown on the basis of evidence that to extend the pay protection to the claimants would have rendered the appellant uncompetitive across the range of its operations”
Since the test is one of objective justification, it is open to an employer to provide retrospective justification for such pay arrangements. However the Court of Session held – “the fact that a matter was given no consideration at the time of a decision is highly relevant to consideration of whether that decision can be justified and considered proportionate”. So to end on a note of caution – employers should therefore give active consideration to objective justification at the time of implementing any pay protection arrangements before it’s too late. Please click here to the Court of Session Judgement.