"1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. 2. For the purpose of this Article, 'pay' means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means – (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job. 3. The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. 4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers."
"1. Evaluation of jobs covering some 90% of the manual worker labour force has been undertaken at national level so what remains to be done locally is first, to ensure that the local job content accords broadly with the national position, and second to bring the remaining 10% onto the structure. This document therefore provides the materials to allow this to be done, sets out the approach to the task, describes how the national structure was evolved and what criteria should be brought in at the local level in the assimilation process."
"(ii) Assessment of Local Jobs 9. The task of the assessment of local jobs which have not been examined nationally will be a major consideration at Provincial Council level and within each authority. In many instances these occupations will have a job content and mix of skills and responsibilities not dissimilar from national jobs, but it is recognised that, with the range of services local authorities provide, there are jobs with only a few people in them which are very different from the mainstream. For these occupations, a more detailed exercise will have to be carried out. It is essential that there is agreement between both sides locally on the approach to be adopted in this part of the exercise. The NJC decided that factor analysis should be used where appropriate to assess these local jobs. There should be no need to carry out a full job evaluation exercise as done nationally. Factor Comparison 10. Factor comparison is normally defined as the definition and assessment of jobs in terms of a few common factors. For this exercise it entails looking at the content of a local job, e.g. public lighting attendant, and comparing it with what are considered to be the closest national jobs using (i) the individual factor scores for these comparator jobs, (ii) the national job outlines and commentary (see section 3), (iii) the job evaluation scheme and notes of guidance. The national jobs are therefore the key or benchmark jobs against which all others have to be placed in the structure. 11. The national jobs have been analysed and evaluated in full against the factors and a separate score on each factor has been produced. For the remaining jobs, i.e. the local jobs, what has to be done is to produce a factor by factor score for each using the material outlined in Paragraph 10. For example taking again the public lighting attendant, there is a range of jobs against which this can be compared. In the first instance it is likely that that the attendant has driving duties, so the driving jobs would feature in the comparison. Further there are skills utilized which may be comparable with some of the roadworker jobs, and there may be responsibility for significant tools and equipment which might bring in other jobs such as gardener. By comparing the local job with the full range of the factor scores of the appropriate national jobs, the factor by factor score of the local jobs will be built up. The resulting factor levels will be used to produce an overall score, which will then allow the job to be placed on the structure. 12. The national jobs, 37 in all, cover a very wide range of manual worker occupations so finding a reasonable set of comparators for local jobs should not prove difficult."
"Summary 18. Bringing jobs onto the new structure is a two stage process. In the first for national jobs there should be a check to ensure that the job being done in the authority fits broadly with the national outline for the job. If it does then there is no problem. If it does not, then the part of the process that applies to local jobs – job comparison – should similarly be undertaken. 19. For local jobs factor comparison with appropriate national jobs should be used. This involves building up a score for the job in each factor using the scores of comparable national jobs, thereby enabling the job to be placed in the structure. 20. The joint process of bringing jobs onto the structure will depend essentially on the judgement and goodwill of the parties and must be completed speedily. It is only where there are clear and major differences between the national outline and the job being carried out in the local authority that there may be any need to undertake a closer examination of such jobs by applying the process of factor comparison which we recommend for local jobs."
"(o) We do not accept, in these circumstances, that we should assume that the evaluating of the Jobbing Assistant was in error, given the period of time which has elapsed since it was done and there being no evidence of any complaint. We also find that the NJC Scheme, adopted as a Local Agreement, is intended to be a living structure to which jobs are added at local level from time to time by the process of assessment. Consequently, we find that it is not unnatural for such jobs to be considered in the process of assessment by factor comparison. (p) We do not accept the Respondents' argument, therefore, that there was intolerable scope for error in the assessment process for the Assistant Caretaker post, such that the evaluation was fatally flawed. (r) We do not find that it can be successfully argued in relation to the Jobbing Assistant post that, by its inclusion in the factor comparison, the post of Assistant Caretaker was not evaluated under the NJC Scheme."
"It seems to us that subsection (5) can only apply to what may be called a valid evaluation study. By that, we mean a study satisfying the test of being thorough in analysis and capable of impartial application. It should be possible by applying the study to arrive at a position of a particular employee at a particular point in a particular salary grade without taking other matters into account except those unconnected with the nature of the work. It will be in order to take into account such matters as merit or seniority, etc., but any matters concerning the work (e.g. responsibility) one would expect to find taken care of in the evaluation study. One which does not satisfy that test, and requires the management to make a subjective judgment concerning the nature of the work before the employee can be fitted into the appropriate place in the appropriate salary grade, would seem to us not to be a valid study for the purpose of subsection (5)."
"What section 1(5) does require is, however, a study undertaken with a view to evaluating jobs in terms of the demand made on a worker under various headings, for instance effort, skill and decision. To apply that to section 2A(2)(a) it is necessary, in my judgment, that both the work of the woman who has made the application to the industrial tribunal and the work of the man who is her chosen comparator should have been valued in such terms of demand made on the worker under various headings. Mr Lester submitted that the method used on undertaking a study within section 1(5) must necessarily be analytical, a word he used in the sense of describing the process of dividing a physical or abstract whole into its constituent parts to determine their relationship or value. Sir Ralph Kilner Brown criticised the use of the word analytical as a gloss on the section. In my judgment, the word is not a gloss, but indicates conveniently the general nature of what is required by the section, viz. that the jobs of each worker covered by the study must have been valued in terms of the demand made on the worker under various headings."
"Did the method the panel adopted for the evaluation of the assistant caretaker post involve a material departure from the Scheme such that it could not be said that the evaluation was carried out under that Scheme?"
"Basis of Scheme 2.2. The scheme is straight proportional and based on the principle of an average person having the opportunity to earn bonus of 33 1/3% at the appropriate bonus rate (including service supplement and plus rates for skill and responsibility) as bonus for 'standard performance'. Type of Scheme 2.3. The scheme is a 'task type'. The basic principle as outlined in paragraph 2.2 has been applied when calculating Caretaker and Assistant Caretaker workloads. Maximum Bonus 2.4. In order to safeguard health, equipment and quality of work the maximum bonus rate for Caretakers and Assistant Caretakers will normally be set at 33 1/3 on cleaning duties. Payment of Bonus 2.5. Bonus will be paid weekly in arrears of wages, to allow necessary time for calculation. Range of Work 2.6. The incentive scheme covers the work of cleaning and management duties involved for all estates and other nominated residential buildings. A detailed list of all duties to be undertaken is given in Appendix 'A'. Method Changes 2.7. When methods, equipment etc., are altered, Management Services will restudy the work as necessary to determine the effect on the allowed times. Before any study work or changes take place the normal consultative procedures will be carried out."
"'Call Out' Hours 5.3. The number of 'call out' hours should be noted and trends explained as this is an additional cost to the level of service. 5.4. The number of bonus hours deducted and number of substantiated complaints received from tenants for poor quality of work will give a further indication of the level of service achieved."
"(x)… the supervision of Caretaking Staff was added to the responsibility of the Estate Managers in the Housing Department, in connection with a compulsory competitive tendering exercise in which the [Islington] staff were awarded the estates cleaning contract for a five-year period. The post of Superintendent Caretaker was rendered redundant in the reorganised structure for the cleaning contract, under which the Housing Estate Managers were able to devote only approximately 10% of their time to the supervision of the Caretaking Staff. The bulk of their time was devoted to their other responsibilities in the Housing Department. (xi) The effect of this reduced level of supervision was that, during the period up to October 1999, the performance levels and standards of cleaning by the Caretaking Staff on the housing estates declined. The Tribunal heard evidence about two individual Caretakers (Mr P. Owen and Mr G. Doolan), both of whom were trade union representatives, in whose case there was ample evidence of poor levels of performance and standards. In neither case did this result in reduction of bonus payments. These continued to be paid despite obvious failures to respond to management concerns expressed in quality control sheets, letters from Estate Managers and, in the case of Mr Owen, oral interviews. (xii) In the period before the estates cleaning contract was awarded, the Superintendent Caretakers would from time to time exercise the sanction of suspending and/or stopping altogether hours from Caretakers' pay, including bonus, pending enquiries into poor performance. After the 1995 reorganisation, the Estates Managers did not do this. A presumption apparently developed among some of the Caretaking Staff whereby the bonus payment came to be regarded as inviolable and a payment as of right."
"(xiii) However, the Buff Book, continued to be the yardstick against which the performance levels of the Caretaking Staff were judged by management. Its terms were incorporated as the specification required under the estates cleaning contract, and it was referred to on occasions by Estates Managers in their supervisory dealings with Caretaking Staff. (xiv) Thus, for example, in July 1997 Mr P. Owen was informed by Estates Manager, Ms Linda Potter, that 'you have not been carrying out your duties this week …. as detailed in the buff book'; and Mr Doolan was written to by Estates Manager, Ms Coghiel, in August 1995 requiring him to carry out tasks 'as laid down in the caretaking quality manual'. (xv) The Tribunal heard of numerous examples relating to the work performance of Mr Owen throughout the 1990s whereby there were concerns raised by management as to the quality of his work and attempts made to raise his performance levels to those required by the Buff Book. These examples were evidenced by documents such as management quality control check sheets and internal memoranda and included notes of disciplinary interviews held on occasions. (xvi) The fall in the performance levels of the Caretaking Staff and the rise in levels of complaints from tenants resulted in a decision taken by [Islington] in October 1999 to end the estates cleaning contract prematurely. An immediate consequence was to restore a team of Caretaker Managers who were given an exclusively supervisory role, similar to the former Superintendents, to uphold the performance levels and standards set in the Buff Book. (xvii) Between 1999 and 2001, [Islington] undertook a review of the Caretaking Services, which led to a restructuring in about September 2001. The Assistant (now classified as Non-Residential) Caretakers by agreement with management and the trade unions now carry out duties under a new job description rather than by reference to the duties specified in the Buff Book. As regards the remuneration of Non-Residential Caretakers, the incentive bonus scheme no longer applies and the former bonus payments have been consolidated into normal earnings. (xviii) The Resident Caretakers have been unwilling to accept the new arrangement which deletes the incentive bonus scheme. The scheme still remains as part of the Resident Caretakers' remuneration package, based on the Buff Book duties."
"The scheme of the [EqPA] is that a rebuttable presumption of sex discrimination arises once the gender-based comparison shows that a woman, doing like work or work rated as equivalent or work of equal value to that of a man, is being paid or treated less favourably than the man. The variation between her contract and the man's contract is presumed to be due to the difference of sex. The burden passes to the employer to show that the explanation for the variation is not tainted with sex. In order to discharge this burden the employer must satisfy the tribunal on several matters. First, that the proffered explanation, or reason, is genuine, and not a sham or pretence. Second, that the less favourable treatment is due to this reason. The factor relied upon must be the cause of the disparity. In this regard, and in this sense, the factor must be a 'material' factor, that is, a significant and relevant factor. Third, that the reason is not 'the difference of sex.' This phrase is apt to embrace any form of sex discrimination, whether direct or indirect. Fourth, that the factor relied upon is, or in a case within section 1(2)(c), may be a 'material' difference, that is, a significant and relevant difference, between the woman's case and the man's case. When section 1 is thus analysed, it is apparent that an employer who satisfies the third of these requirements is under no obligation to prove a 'good' reason for the pay disparity. In order to fulfil the third requirement he must prove the absence of sex discrimination, direct or indirect. If there is any evidence of sex discrimination, such as evidence that the difference in pay has a disparately adverse impact on women, the employer will be called upon to satisfy the tribunal that the difference in pay is objectively justifiable. But if the employer proves the absence of sex discrimination he is not obliged to justify the pay disparity."
"… even where the variation is genuinely due to a factor which involves a difference of sex, the employer can still establish a valid defence under subsection (3) if he can justify such differentiation on the grounds of sex, whether the differentiation is direct or indirect."
"(g) With regard to these two Caretakers, as against the obvious evidence of poor workmanship, we note however the considerable evidence contained in bundles C and E of attempts by management at various times to ensure compliance with the duties in the Buff Book, upon which the incentive bonus scheme was based. (h) We are satisfied that a lapse in performance levels and standards was permitted during the unsuccessful reorganisation of supervision under the estate cleaning contract. We are satisfied that the decision to dispense with close supervision by Superintendents and to add their role to the numerous responsibilities of Estate Managers in the Housing Department proved to be a mistake. This mistake was eventually recognised in October 1999 and, in effect, was reversed. (i) We are satisfied that this lapse in good management and supervision of the Caretaking Staff did not cause the objective of high levels of productivity and standards to cease being the reason for the difference in pay between the comparator and the Applicant groups. There is ample evidence of the fact that, despite the shortcomings of the supervision system during the period of the estate cleaning contract, both management and trade unions recognised that the satisfactory performance by the Caretakers was always to be measured by the yardstick of the Buff Book. (j) We take into account the evidence of the Caretaker Manager, Mr Evans, who was formerly a Caretaker himself before becoming a Superintendent Caretaker. In his latter role he preferred to discuss concerns with his supervisees and talk problems through, rather than react by immediately cutting bonus payments. On occasions he did suspend and sometimes cut hours altogether when appropriate, which would have the knock-on effect of reducing bonus. He believed that other supervisors acted in a similar way, although he believed Estate Managers, when they were entrusted with supervision, may have been unaware of their power to deduct bonus because of their lack of training in the role which they took over from the Superintendents. (k) From the early 1990s poor performance has not consistently been visited with deduction of bonus. We accept on the other hand the evidence of Mr Evans of his practice of suspending and deducting hours on occasions for poor performance. We note in this regard that the provisions of the Buff Book state that: '… time may be deducted from the total bonus. (l) The reason for the introduction of the incentive bonus scheme was, therefore, in order to bring about and maintain improved levels of performance and standards in the cleaning duties of Caretaking Staff whereby, as a consequence, Caretakers could be awarded increased earnings at a time when they had to be linked to increases in productivity. … (p) Accordingly, we are satisfied that the Respondents have established that the variation in pay was, and has remained, genuinely due to a material factor which is not related to the gender of the Applicants or the comparator, namely the objective of securing and maintaining high levels of performance and standards in the cleaning work of Assistant Caretakers."
"(x) We find that the Respondents have established objective justification in that the material factor of seeking to bring about and maintain high levels of productivity and standards of work by means of an incentive bonus scheme, on the facts of this case was both a necessary and appropriate step for [Islington] to take in order to achieve their objective of providing an efficient Caretaking Service for the tenants on their housing estates. On the evidence put before us we find that the payments made to the Applicant groups are consistent with the public duty of [Islington] not to permit contractual terms of payment which are 'irrationally generous or unreasonably in excess of a fair or market rate', a principle laid down in Eastbourne BC v. Foster[2001] LGR 529 . (y) The Buff Book Scheme has been shown to be an appropriate method by which [Islington's] management have been able to raise levels of performance and standards of cleaning work by Assistant and Resident Caretakers. The possible sanction of withdrawal of bonus has always remained an aspect of the scheme, albeit rarely used. (z) In holding that the Respondents have therefore shown objective justification of the material factor that we have found caused the variations in pay between all Applicant groups and the comparator, we have borne in mind that the respective pay arrangements have been negotiated throughout a period in excess of 30 years by collective bargaining process between management and the trade unions acting for the respective groups."
"Definitions 1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no discrimination whatsoever based on sex, either directly or indirectly. 2. For purposes of the principle of equal treatment referred to in paragraph 1, indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex."
"31. … article 119 [now 141] of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men, unless the undertaking shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex."
"The law on article [141], whilst recognising that in many cases there is a de facto distinction between direct and indirect discrimination, does not draw the same firm legal demarcation between the two as does theSex Discrimination Act 1975 which permits justification of indirect discrimination but not of direct discrimination. The correct position undersection 1(3) of the Equal Pay Act 1970 is that, even where the variation is genuinely due to a factor which involves the difference of sex, the employer can still establish a valid defence under subsection (3) if he can justify such differentiation on the grounds of sex, whether the differentiation is direct or indirect. I am not aware as yet of any case in which the European Court of Justice has held that a directly discriminatory practice can be justified in the Bilka sense. However, such a position cannot be ruled out since, in the United States, experience has shown that the hard and fast demarcation between direct and indirect discrimination is difficult to maintain. From what I have said, it is apparent that, in consideringsection 1(3) of the Equal Pay Act 1970 , the only circumstances in which questions of 'justification' can arise are those in which the employer is relying on a factor which is sexually discriminatory. There is no question of the employer having to 'justify' (in the Bilka sense) all disparities of pay. Provided that there is no element of sexual discrimination, the employer establishes a subsection (3) defence by identifying the factors which he alleges have caused the disparity, proving that those factors are genuine and proving further that they were causally relevant to the disparity of pay complained of."
"… such a national measure is to be regarded as indirectly discriminatory to the particular extent if it imposes a requirement which a considerably smaller percentage of women than men, or men than women, is able to fulfil and where the discriminatory measure is not justified by objective factors unrelated to any discrimination on the grounds of sex."
"(vii) The employment tribunal, in such less obvious cases, after looking in detail at such figures as should have been laid before it, must then stand back, as it were, and, assimilating all the figures, is then to judge whether the apparently neutral provision, criterion or practice in issue has a disparate impact, being on men or women, that could be fairly be described as considerable or substantial."
"… whether the principle of equal pay for men and women requires the employer to prove, by providing objective justification, that a difference in pay between two jobs assumed to be of equal value, of which one is carried out almost exclusively by women and the other predominantly by men, does not constitute sex discrimination."
"15. In this case, as both the health authority and the United Kingdom observe, the circumstances are not exactly the same as in the cases just mentioned. First, it is not a question of de facto discrimination arising from a particular sort of arrangement such as may apply, for example, in the case of part-time workers. Secondly, there can be no complaint that the employer has applied a system of pay wholly lacking in transparency since the rates of pay of National Health Service speech therapists and pharmacists are decided by regular collective bargaining processes in which there is no evidence of discrimination as regards either of those two professions. 16. However, if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing that situation are valid. 17. It is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short term phenomena, and whether, in general, they appear to be significant. 18. Where there is a prima facie case of discrimination, it is for the employer to show that there are objective reasons for the difference in pay. Workers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case of discrimination did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory: see, by analogy, Handels-og Kontorfunktionaerernes Forbund i Danmark v. Dansk Arbejdsgiverforening (Case 109/88)[1991] ICR 74 ,79, para. 13. 19. In these circumstances, the answer to the first question is that, where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, article 119 [now 141] of the Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex."
"23. Accordingly, the answer to the second question is that the fact that the respective rates of pay of two jobs of equal value, one carried out almost exclusively by women and the other predominantly by men, were arrived at by collective bargaining processes which, although carried out by the same parties, are distinct, and taken separately, have in themselves no discriminatory effect, is not sufficient justification for the difference in pay between those two jobs."
"It is for the national court, which alone has jurisdiction to assess the facts and to interpret the national legislation, to determine whether that is so. It is necessary in that regard to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provision in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions, as a means to the achievement of certain aims, are capable of advancing those aims (see, in that regard,case C-167/97 Seymour-Smith and Perez[1999] IRLR 253 , paragraph 72)."
"… the introduction of this monitored and rigorous incentive bonus scheme did result in very significant improvement in the overall Caretaking service. While the incentive bonus scheme included provision for the withholding of bonus where the agreed standards were not being met I am aware that Caretaking Superintendents found this extremely difficult to implement. The situation arose because in many instances the full Caretaker/Porter complement of hours was not available. However this situation in no way undermines the fact that the bonus incentive system introduced a rigorous scheme of management control and the threat of financial penalties proved very effective."
"In practice, quality control checks were undertaken by superintendents. We were not in the area of reducing bonus. We wanted to ensure work was being done, not reduce bonus. The essence was to put the work back to the standard required. The role of superintendent was to do their various checks. I also carried out checks."