This is the long and complex decision of the Court of Appeal in Redcar v Cleveland BC; Surtees v Middlesborough BC on the questions of pay protection and objective justification in the long-running equal pay claims against local authority employers in the North East. Mummery LJ gave the decision of the whole court. A thumbnail such as this cannot even begin to cover it, given that it runs to 318 paragraphs addressing six separate issues.
Points of general relevance in the judgment include:
- the employer's knowledge and intentions when putting arrangements such as the pay protection schemes in these cases into place are relevant when considering justification but are not relevant when considering the essential preliminary question of whether there has been discrimination.
- although the Court of Appeal ruled that on the facts Middlesborough and Redcar Councils were both "guilty" of unjustified sex discrimination, it also made it clear that in principle a sex discriminatory pay protection scheme can be capable of being justified;
- whether discrimination is justified depends on findings of fact by the original tribunal and therefore, unless perverse, cannot be overturned on appeal. At the heart of the decision is the dismissal of Redcar's appeal and the granting of Ms Surtees' appeal on the questions of the Genuine Material Factor (GMF) defence and objective justification.
In the Redcar case, the EAT had agreed with the original tribunal that Redcar's attempts at pay protection were sex tainted and so could not amount to a GMF defence - "The council can surely not pray in aid its own failure to implement equality as a justification for defeating it. It would frustrate the fundamental principle of equality to deny them benefits which, as everyone accepted, they were legally entitled to receive...". The Court of Appeal agreed, and dismissed Redcar's appeal as the EAT had done.
In the Surtees case, the EAT had come to a different conclusion. Overturning the original tribunal decision, the EAT concluded that Middlesbrough's pay protection scheme was discriminatory but that the discrimination was objectively justifiable. The Court of Appeal held that the EAT had had no grounds to interfere with the original tribunal's findings. Objective justification is to be decided upon by the original tribunal - "The findings of fact which underlie the evaluation are matters for the [original tribunal] and can be overturned only on conventional perversity grounds". Perversity did not apply here and so the EAT had no right to interfere. Ms Surtees' appeal therefore succeeded and the orginal tribunal's decision, that the discrimination in pay was not objectively justified, was restored.