The Court of Appeal has just handed down its decision in the important equal pay case of Robertson v DEFRA. It has upheld the decision of the EAT (Burton P.), reversing the employment tribunal's finding that it is legitimate to make cross-departmental comparisons within the civil service.
Six male civil servants from DEFRA brought equal pay claims, citing female employees who were employed by a different government department, the DETR. Technically, they have the same employer (the Crown), but pay negotiation is delegated by the Crown to each of about 90 different government departments and agencies.
It was common ground that they could not claim under the Equal Pay Act 1970, as they did not work at 'the same establishment'. They accordingly relied on Article 141 of the EC Treaty (which is directly enforceable against the Crown).
The Court of Appeal held:
1. Working for the 'same' employer (the Crown) is not SUFFICIENT to establish common employment for the purpose of an Article 141 claim. To establish comparability, the ECJ has said that the relevant body is the one "which is responsible for the inequality and which could restore equal treatment". This will usually, but not always, be the employer.
2. The employment tribunal was wrong to hold that the Crown was the 'single source' for the terms and conditions of employment. For perfectly valid reasons, the Crown had delegated pay negotiations to different departments. Neither the Treasury nor the Cabinet Office were involved in negotiations within different departments, and there is no co-ordination between different sets of negotiations.
Thus it is not permissible to use comparators from different government departments for the purpose of an Equal Pay or an Article 141 claim.
A reference to the ECJ was refused.
Robertson v DEFRA