V Barnard v Hampshire and Isle of Wight Fire and Rescue Authority [2024] EAT 12

“Mr Adamson stressed, and the Tribunal accept, that there were numerous operational competencies which must be maintained by all grey book contracted firefighters regardless of the role, albeit these related to the level of the role and the type of operational role they can be expected to carry out. As he put it, ‘these include knowledge relating to firefighting tactics and operations, equipment and the risks present in emergencies of different kinds’.”

“126. There were provisions for the grey book staff which were more generous in relation to a week’s pay, in that as nationally agreed all grey book staff would as a starting point be on a basic salary of 42 hours a week whereas green book staff were on a salary based on 37 hours a week. It is clear that the difference is accounted for by the agreement that all grey book staff would have paid meal breaks, which equated for staff working in weekly office hours for a paid one-hour lunch break each day of the week. 127. On the other hand, however, grey book staff were subject to more onerous requirements to ensure that they kept themselves fit, and (albeit not reflected in the wording of the contract of employment itself) that they were operationally up-to-date and available for any operational role at their rank or role, consistent with their operational background. This was not a requirement placed on green book employees. Similarly, grey book employees were subject to a much more onerous regime of being required to move at managements’ discretion to anywhere within the Hampshire area, and as required to work outside the area as the need dictated, and in some cases to be deployed abroad. Similarly, they could be redeployed for temporary operations, again, at the discretion of management. 128. The green book employees were under less onerous requirements, and in terms of changing their permanent place of work, for example, this was qualified by the need that it should be within reasonable travelling distance of their initial contractual place of work.”

“In respect of the training, however, Mr Ison explained that when he and the claimant attended training days together at Winchester fire station it would be the same technical competency training 0900 – 1100, but from around 1100 green book employees would continue their fire safety duties while grey book staff, including Mr Ison, would carry out fire ground operational training until lunchtime. Mr Ison also described how he carried out one week of training every six months on the essential competencies required at Crew Manager level to enable him to be competent to attend an incident as part of a firefighting crew, covering such matters as breathing apparatus, hose management, site safety, casualty handling and also maintaining first aid qualifications and driving assessment so to enable him to drive fire engines. The claimant was not required to attend such training. The Tribunal notes that Mr Ison also received CPD payments as well as his basic contractual entitlements.”

“Meanwhile, there had been discussions about remuneration packages for the Heads of Service (or “HOST” - a senior management role above the claimant’s level, but below the most senior “gold book” levels). On 8 January 2015, a decision was taken to move several affected senior managers at HOST level from green book to grey book terms, so that they were all on broadly the same reward packages. The tribunal heard from Ms Dickinson that this local experiment was not seen as a success, and by the time of the hearing no employees remained on this scheme. Employees subsequently appointed to the Head of Service Team (HOST) remained on green or grey book contracts, as the case might be. Staff had moved on, retired or been promoted, and at the time of the hearing all members of the Team who had previously been on green book terms were still on green book terms.”

“Similarly, it may well be that the nationally agreed terms and conditions are something of a blunt instrument for dealing with local circumstances, which was reflected in the respondent’s attempts to bring senior management (above the claimant’s level, but below the “gold book” level) onto the same conditions of service at the HOST level. Although the claimant not unreasonably felt that if an exception could be made for more senior employees, it might also have been made at her lower level, the tribunal accepted the respondent’s evidence that in fact this experiment was highly problematical and simply did not work effectively. After the experiment, management reverted to the previous model. Indeed, the sensible and thoughtful evidence from Ms Dickinson, who had been an inadvertent beneficiary of this experiment, before she was promoted on merit to Assistant Chief Officer (on gold book terms), was plainly herself uneasy with the package she had received. She confirmed that there was now nobody subject to these arrangements. The position remains that below Chief Officer/Assistant Chief Officer level, all employees remain either on green book terms, or on grey book terms.”

“164. Indeed, one of the factors in this case is clearly that the claimant’s professional skills enabled the respondent to experiment in giving her greater responsibility than would usually be the case for a green book employee, putting her in roles where there was little or no track record of green book employees. There was not, therefore, any clear model to follow. In those circumstances it is perhaps unsurprising that there was a degree of uncertainty as to how her terms and conditions of employment should be configured, and what rate of pay she should be on. She was very much a trailblazer. In carrying out these roles she was fully aware throughout, that terms and conditions for grey book operational firefighters were very different from those with local government employee terms and conditions, on green book contracts of employment. Nevertheless, she made it clear that she had no wish to train in firefighting and keep current all the operational skills required of grey book employees. It is evident that she wished to have the same financial package, for carrying out, in her view, the same role, whilst consciously choosing not to take on the necessary additional responsibilities which fell to grey book colleagues. That might include risking her life. The claimant explained to the tribunal that the commitments would not suit her domestically, but she nevertheless wished to be paid the same as grey book colleagues who were ready to carry out other roles, where and when required. 165. The claimant had evidently reached the conclusion that any differences in pay must be discriminatory, because from her perspective she carried out same role on a day-to-day basis. Whilst, at the same time, she turning a blind eye to the telescope when that telescope focused on other significant differences in contractual liabilities, which were less attractive to her.”

“211. As the tribunal has recognised (see paragraph 81 onwards, above), as well as the respondent being bound by the national agreements, there are fundamental differences between what operational firefighters can be expected to do, particularly at times of local or national emergency, and what is expected of green book employees. The tribunal has concluded that these are fundamental differences, which might require far more domestic disruption, as indeed the claimant herself appears to have recognise in not pursuing this career option, and ultimately to risk life and limb and potentially a requirement to deal with difficult, dangerous and harrowing public duties. These are important differences. 212. At all times the claimant was on green book contracts and her comparators were on grey book contracts. The tribunal has not been provided with any evidence that in non-operational green book employee at the claimant’s level had ever been placed on a grey book contract, as if he or she was an operational firefighter. The only similar example brought to the Tribunal’s attention was when the respondent, for a relatively brief period, experimented with moving green book employees to grey book terms and conditions at a more senior grade. Whilst the respondent accepts that it was within their discretion to do that, and to replicated at other levels, the tribunal accepts that this was a one-off decision, which was later reversed, with no suggestion that it was ever replicated.” “215. Paragraph 8(b): Grey Book employees were required to be available for operational work and/or to respond to or be redeployed operational during emergencies or other major incidents (such as when there was widespread area flooding) while Green Book employees were not so required.” “217. On this specific point, even if operational firefighters (when carrying out largely management roles) might go for some considerable time without being called out for operational duties, they remained available as required, and as explained above. Ultimately, the respondent could require grey book employees to carry out operational duties, and to assist with incidents. Although the claimant may assist with supporting operational duties, she had a considerably lesser contractual obligation to do anything other than her day-to-day job.” “219. Paragraph 8(c): Grey Book employees were required to be “on call” and at the disposal of the Respondent during lunch breaks and were therefore required to work a 42 hour week and paid on that basis, while Green Book employees were not so required and worked a 37 hour week. 220. The tribunal agrees with the respondent that even if in many cases, grey book employees were not required to give up their lunch break or to remain on call, they were required to be available on call if needed. Even if, in the roles specifically considered in this equal pay claim, call out during the lunch hour was uncommon, it was nevertheless a material factor. The tribunal recognises that one way to deal with this might be to move grey book employees between different rates of pay depending on what they were contracted to do any given period of time, but it also recognises that this may well be impracticable, and would in any event breach the national agreements as to the terms and conditions of service. Although the claimant did not like this difference, and the tribunal can understand why on any given day the claimant and her comparator might have the same lunchtime arrangements, for which the claimant would not be paid, the tribunal sees nothing objectionable in this requirement (or potential requirement) being linked to a particular difference in pay, namely the greater number of paid working hours per week to account for paid lunch break.” “224. Paragraph 8(d): Grey Book employees were required to maintain competencies for operational duty at the appropriate Grey Book role while Green Book employees were not so required. 225. The tribunal agrees with the respondent that this requirement was fundamental to the role of grey book staff. They might at any point be required to carry out operational duties at short notice, including at a managerial level, where they might need to take charge of major incidents. But this also had a career dimension: even if a grey book employee was for the time being assigned to a role with less likelihood of carrying out operational duties, he or she would clearly also need to maintain skills ready for the next role, at the same level or on promotion, which might require the application of operational competence on a day-to-day basis.” “227. Paragraph 8(e): Grey Book employees were required to maintain fitness and undergo fitness assessments (in accordance with the Service Fitness Order) while Green Book employees were not so required. 228. The tribunal agrees with the respondent: this is a similar point to the one made at paragraph 8(d), and the same arguments apply. The tribunal accepts the argument that operational firefighting duties could be very physical in nature, requiring grey book staff to maintain personal fitness levels. The nature of the contractual duties for green book staff did not require measurable levels of fitness.”

“280. Although there may, inevitably, be some debate about the precise wording of the legitimate aim, the tribunal accepts that both of these aims are legitimate. Clearly the underlying argument, about which the tribunal heard much evidence, relates to the statutory and ministerial requirements placed upon the respondent to carry out functions which have been satisfactorily summarised as to “ensure the safety of the public, their property, and the environment.”

“287. In principle, the tribunal accepts the respondent’s arguments that it was a proportionate means of achieving those legitimate aims by keeping employees at the claimant’s level on to separate terms and conditions of service, as governed by national agreements with the unions. In its analysis above, in relation to the actual differences in pay, the tribunal considers that they are not as significant as the claimant would argue, and particularly if one takes into account the general requirement that grey book employees may be required to be on call over lunch hour, and therefore to be paid for five additional working hours each week, the difference in wages (approached as a “per hour” rate of pay) is not nearly as great (less than £70 (gross) per month, on average). But even taking the claimant’s case at its highest, the average gross difference in annual pay was some £4,400 (or less than £370 per month). Although not insignificant, this was not a particularly great disparity, given the more onerous grey book contractual requirements. Comment has been made above, in considering “particular disadvantage, as to he relatively modest difference in terms of % disparity. 288. The Tribunal agrees with the respondent that when Mr Adamson was giving evidence, although some of what he said was challenged in cross examination, it was not suggested to Mr Adamson that the legitimate aims relied upon could have been achieved in some other way. This is a telling point. 289. The particular challenge in this case is the extent to which broader criteria are relevant to the actual day-to-day work, with the claimant sharing identical, or near identical, job descriptions with her comparators. If, as the claimant sought to do, one looked purely at the job description, it may look as if the claimant was indeed being underpaid in comparison with male comparators, for doing the same job. However, even on a day-to-day basis, the actual job was not the same, as her comparators were required to do things which were not in the role description, but which were required under the grey book and associated role maps. It was almost as if grey book employees were subject to two separate contracts: one which related to the job description of the specific role they were appointed to, and anther relating to what was required of a grey book employees at their level. This is not part of the tribunal’s legal analysis, but perhaps helps to explain the claimant’s perspective: she focussed on the day-to-day activities relating to the job description, rather than all the other activities covered by the grey book contract and role maps (supplemented by local Orders). 290. At various stages, grey book comparators were required to be on an oncall rota, which continued over the lunch break, they were required to retain levels of personal fitness (even if there was some margin of appreciation), and to attend (and/or deliver) regular continuation firefighting training to ensure they remained operationally effective. These were not requirements that the claimant had to meet, as referred to extensively above. As described, whatever particular job role a grey book employee was carrying out at any given stage, which included the comparators carrying out core duties near identical to the claimant’s, they remained available for redeployment at a moment’s notice, either to deal with the overall operation overall operational needs, or to deal with specific emergencies. 291. The consideration of proportionality has required the tribunal to conduct a balancing exercise (see, for example, Barry v Midland Bank Plc (1999) ICR 859). As referred to elsewhere, the tribunal has given weight to the arguments relating to nationally agreed salary scales, with the aim of ensuring an efficient fire and rescue service. Whilst Mr Matovu is right that the respondent could have achieved its legitimate aims by unilaterally placing the claimant (as a green book employee) on a grey book financial package (but without the associated liabilities), it was under no obligation to do so, and this does not undermine the proportionate means of achieving the legitimate aim. It is ironic that, over time, the claimant’s desire to improve her financial package was increasingly being met, and that a the time of resignation she was very close to her comparator’s salary level, with a promise of working with her to see what other improvements could be made. The respondent was taking incremental steps to help the claimant, but without undermining the distinction between grey and green book for staff at the claimant’s level. The tribunal considers that it was proportionate to maintain the distinction between the two types of contract, for staff at the claimant’s level and below. 292. The claimant understandably questioned why an exception was not made for her, when the respondent did indeed experiment with making an exception for a more senior tier of management, namely the “HOST” level, where a local decision was taken to pay the Heads of Service on grey book terms, regardless of whether they had previously been (or would otherwise have been paid) on green book terms. The tribunal accepts that it shows that it was open for the respondent to depart from nationally agreed terms and conditions, at least on the basis of paying green book employees more money, without eroding the terms and conditions for grey book employees. Clearly, had this been rolled out more generally it would have had significant financial implications for the respondent’s budget, and the tribunal accepts that one consequence might have been that grey book employees would query why they should have to be on call, to remain physically fit and trained to high operational standards, and keep themselves available at a moment’s notice to be redeployed or to risk their lives, if they could receive the same pay without those requirements. That would somewhat undermine the respondent’s ability to meet the legitimate aims. Furthermore, the Tribunal notes the persuasive evidence of Ms Dickinson, that although she was a beneficiary of this trial, she was in fact quickly promoted beyond that level, and in fact the trial has been discontinued. Whilst the tribunal was not provided with direct evidence as to why the decision was subsequently taken for managers at the HOST level to remain on green or grey book terms and conditions, it is plain that senior management took the view that this trial was not successful and that it did not benefit the organisation. 293. The tribunal considers that the particular disadvantage suffered by women (being in the minority of the operational grey book employees), by being paid slightly less under green book terms, was a function of the different contractual commitments, and balanced by the absence of onerous requirements in respect of training and remaining operational, keeping fit, mobility clauses, availability for on-call if required (including through lunch breaks) and the requirement to be deployed to dangerous and potentially life-threatening situations. It was open to any green book employee, male or female, who wished to transfer across to grey book terms as an operational firefighter, to apply to do so, accepting both the slightly higher remuneration package, but also the liabilities. The claimant did not wish to do so. The aims were not only legitimate, but sensible and in the wider public interest, and the different financial package for grey book employee was proportionate and reasonable.”

“A contractual obligation that is not enforced and is not essential to the performance of a non-firefighting job is not a material factor.”

“you could avoid the discriminatory impact of not giving me equal pay by giving me equal pay.”