"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."
"(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one."
"An equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor— (a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman's case and the man's; and (b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference." (The slightly different formulations in (a) and (b) are historical accidents arising from the gradual way in which European law was implemented into domestic legislation. The differences are not material. The employer will in all cases have to prove that the difference in pay is genuinely due to a material factor other than sex ("the GMF defence").) It is trite law that the court is obliged to interpret the relevant provisions of the Equal Pay Act , which is the domestic implementation of Article 141, fully in compliance with that Article. Any inconsistency must be resolved in favour of EU law: see, for example, the speech of Lord Nicholls of Birkenhead Autologic plc v IRC[2006] 1 AC 118 paras 16-17. The obligation to construe the domestic law in accordance with EU law is of particular relevance when analysing the scope of s1(3). The reason is that the scope of discrimination in European law extends beyond direct discrimination, i.e. the case where the woman is paid less because she is a woman, and embraces also indirect discrimination. That is not an entirely straightforward concept, not least because there are different definitions of indirect discrimination, even in EU law itself. The essential point, however, for current purposes, is that indirect discrimination occurs where a pay practice in some way has a disparate impact on women or subjects them as a group to a particular disadvantage when compared with men. That is generally, but not necessarily, established by a statistical analysis of the relevant pools. The fundamental difference between direct and indirect discrimination is that (save arguably in very exceptional cases) direct discrimination can never be justified, whereas indirect discrimination can. An employer whose pay practices involve paying women less than men because of their sex is necessarily acting unlawfully; one whose practices have the effect of adversely impacting on women may be able to demonstrate that there is an objective justification for this difference in pay. The test which the courts must apply when prima facie indirect discrimination exists and the employer has to show objective justification is now well established. The classic definition was given by the European Court of Justice in Bilka-Kaufhaus Gmbh v Weber von Hartz[1987] ICR 110 and has been regularly repeated since. In a more recent decision of Cadman v Health and Safety Executive[2006] ICR 1623 , the ECJ summarised it thus (para 33): "
"In other words, the ground relied upon as justification must be of sufficient importance for a national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification. There seems to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied upon."
"The scheme of the Act 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."
"We do not accept that it is established that the road workers are working any faster or harder. The maintenance of productivity is likely to be the result of increased mechanisation and increased management efficiency, and the link between extra effort on the part of the workforce and any particular level of bonus payment is not established."
"The respondent, who went first, relied upon 14 witnesses 13 of whom gave oral evidence. Their witness statements occupied 172 pages. The claimants had 50 witnesses, 12 of whom gave evidence and their witness statements occupied 158 pages. In addition two experts were called, one on each side, Mr Beddoe for the claimant whose report was 96 pages in length; and Dr Whitmore for the respondent whose report was 48 pages in length. We record at this stage that their reports were far too long and their evidence, in our estimation, added little to the strength of either party's case, providing to us little assistance in deciding the issues to which the reports related which was not otherwise canvassed in the lay evidence and in the extremely lengthy submissions. The Tribunal's task was made no easier by the production of no less than 13 lever arch files of documents containing thousands of pages, only a very small proportion of which have, in the end, been referred to."
"8 We recognised that there is a considerable body of evidence, which we accept, that if the bonus had been removed and not replaced, there would have been a reduction in productivity and a considerable amount of the workforce, certainly the most productive of them, would have left. This came not only from the respondent's witnesses Messrs Graham, Gyte and Felc, but there was considerable agreement from the claimant's witnesses, Mr Arthur the former road worker and trade union convenor who had transferred to AMEY, Mr Watling, Mr Hardesty and Mr Meloy. This is a very clear indication that the basic rate of pay (without bonus) for the County Council was below the market rate for the job. The workforce, or certainly the more efficient part of the workforce, would have found similar work in the private sector on higher pay. This establishes that the market rates for these parts of the workforce were clearly above the basic rate paid to them. The essential question we have to ask is whether the respondent has satisfied us that the total remuneration package of the Council was or equated to the market rate…"
"In conclusion we are satisfied, having reviewed the relevant evidence that our conclusion in the original judgment was correct. The respondent has established that the market rate was higher than the basic rate of pay without bonus but it has not established how much higher and we have not been provided with the evidence from which we could reach any sensible conclusion as to what part of the difference can be attributed to such a factor. In this connection, no evidence has been offered by the Council that at any time meetings or discussions took place amongst managers in County Contracting Services indicating that the Council had in mind that some supplement was necessary to recruit a shortfall or retain the existing workforce. The Council's positive evidence was almost exclusively restricted to the productivity issue."
"If there is evidence from which the Tribunal could find discrimination, such as evidence showing disproportionate effect, has the respondent proved the complete absence of sex discrimination, as to which see below, or that the difference in pay is objectively justified applying the Bilka test."
"22.1 …Applying the tests set out in paragraph 20.3 above, we were satisfied that there was ample evidence from which we could infer, in the absence of an explanation, the existence of sex discrimination, at least in relation to bonus. First, the statistical evidence demonstrates that all of the comparator groups, which contained at most only one female, did receive a bonus, and a bonus which averaged some 27% across the board in highways according to Dr Whitmore. The claimant groups not in receipt of a bonus were overwhelmingly female; the lowest majority being 4 to 1 amongst the 281 support workers in DMH Group Homes. We take into account that the total number of male employees in receipt of a bonus is 218 out of 650 male comparators, shown in the statistics set out at Volume 1 pages 469-470 under the heading Group 8 comparators, which is not a list of all male White Book employees of the Council. Equally that document shows that there are 4,497 white book, or former white book female employees and only one in receipt of a bonus. It is not necessary for the underpaid group to be "almost exclusively female" which were the facts in Enderby , it is sufficient if a significant majority of the disadvantaged group are women. Secondly, we have considered the nature of the jobs done principally by the claimant groups. Although the precise figures have not been given to us, there is clear evidence from the claimant's witness statements including those for the time points that a large proportion of the carers, cleaners and kitchen assistants are part-time. They are jobs traditionally done by women and fit around child care responsibilities. There is no evidence that any of the comparators, doing traditionally male jobs, outside in the open air and requiring physical strength, were done part time. There is, of course, no evidence that any woman has been refused access to such jobs, but by their nature, they are jobs which are unlikely to be attractive to women and would not fit in with part time working. We conclude that there is in these respects clear evidence from which we could conclude the presence of indirect discrimination at least. 22.2 There is another pay differential to consider. That is the removal of other pay enhancements from the carers affected by the 1990 and 1994 agreements, and new staff in those employments after 1994, again the figures demonstrate that these groups are overwhelmingly female. There is no evidence that any predominantly male groups ever had enhancements removed, although numbers of road workers and grounds maintenance operatives have reduced over the years. The only evidence possibly pointing away from discrimination is the fact that some of the claimants' jobs in care in the field of DMH did not have enhancements reduced. It is not entirely clear why this part of the group was excluded and we did not consider it right to speculate. We find nevertheless, that the evidential threshold has been achieved in respect of the group of carers who had pay enhancements removed."
"First, as we have indicated in the previous paragraph, there is a marked similarity between the facts in this case and in Ratcliffe . Terms entitling the claimant groups to an enhanced or higher rate of pay were removed, ostensibly in order to enable the groups to compete under CCT, or, as Mr Siegal described it, the mixed economy of care. In reality, it cloaked discrimination. There is no evidence that in respect of this work group the trade unions connived at this pay reduction. The contemporaneous documents indicate that they accepted it under considerable protest. The respondent cannot rely upon the Royal Copenhagen principle. Nor, in our view, can such a disproportionate result be justified by cost considerations. The reality of the situation is that there was enforced upon those work groups lower pay in circumstances which clearly demonstrated sex discrimination. Even if the only alternative was that the respondent would have had to close care homes and cease care provision in favour of the private sector, about which factual proposition we have some doubts, that would not have justified the total abolition of enhanced pay terms for these work groups, and reduced pay rates for new starters."
"We found that there was evidence of less favourable treatment of the female dominated care group compared to the male dominated groups when the respondent was faced with budgetary constraints. In the former case, pressure was put on the work force to agree to an overall reduction in pay, with which the trade union agreed, but with considerable reluctance. In the latter case, the pay levels of the male group were maintained but at the expense of some job losses. We conclude that a significant factor in this difference in treatment was a perception that female part-time workers would be prepared to agree to a pay reduction to retain a job which was particularly suited or more likely to be suited to their personal circumstances than to a man's, namely working around the requirements of child care. Those considerations did not apply to the male dominated full time jobs because they did not have child care responsibilities and were able to be more flexible in the labour market. There were in this respect close parallels with the facts and conclusions in Ratcliffe v North Yorkshire County Council"
"You look at the two contracts; you ask yourself the common sense question- is there in each contract a term of a similar kind i.e. a term making a comparable provision for the same subject matter."
"If the respondent's submission on this point is correct, the respondent would not have to establish a GMF defence, nor to justify a prima facie discriminatory pay scheme which benefited workers of a particular sex. It would be open to an employer to construct a scheme in such a way or of such a kind that it was beyond challenge by a claimant of the opposite sex doing work rated as equivalent or of equal value by introducing elements into the scheme which could only practicably be applied to the benefiting group. This would be a surprising result. The Tribunal accepts that the terms to be applied to the woman's contract must be of a similar kind of that in the man's contract and accepts that the words "similar to" and "corresponding" should be given an equivalent meaning, but there is no necessity to interpret the words "similar" as meaning "identical"
"Civil trials are conducted on the basis that the Court decides the factual and legal issues which the parties bring before the Court. Normally each party should bring before the Court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the Court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. … The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled and the Court requires to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the Court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision but a new case advanced on a different basis. …"
"There must be a limit to the number of times the claimant may change comparator, or to put it another way, a time by which the claimant must make an election as to which comparator or comparators finally to rely upon. The latest, in the Tribunal's view, is before the end of the hearing which determines the issue and certainly before a judgment has been given. We do not think that there are any exceptional circumstances which apply here to allow such an amendment."
"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."
"(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one."
"In other words, the ground relied upon as justification must be of sufficient importance for a national court to regard this as overriding the disparate impact of the difference in treatment, either in whole or in part. The more serious the disparate impact on women, or men as the case may be, the more cogent must be the objective justification. There seems to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied upon."
"The scheme of the Act 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."
"We do not accept that it is established that the road workers are working any faster or harder. The maintenance of productivity is likely to be the result of increased mechanisation and increased management efficiency, and the link between extra effort on the part of the workforce and any particular level of bonus payment is not established."
"The respondent, who went first, relied upon 14 witnesses 13 of whom gave oral evidence. Their witness statements occupied 172 pages. The claimants had 50 witnesses, 12 of whom gave evidence and their witness statements occupied 158 pages. In addition two experts were called, one on each side, Mr Beddoe for the claimant whose report was 96 pages in length; and Dr Whitmore for the respondent whose report was 48 pages in length. We record at this stage that their reports were far too long and their evidence, in our estimation, added little to the strength of either party's case, providing to us little assistance in deciding the issues to which the reports related which was not otherwise canvassed in the lay evidence and in the extremely lengthy submissions. The Tribunal's task was made no easier by the production of no less than 13 lever arch files of documents containing thousands of pages, only a very small proportion of which have, in the end, been referred to."
"8 We recognised that there is a considerable body of evidence, which we accept, that if the bonus had been removed and not replaced, there would have been a reduction in productivity and a considerable amount of the workforce, certainly the most productive of them, would have left. This came not only from the respondent's witnesses Messrs Graham, Gyte and Felc, but there was considerable agreement from the claimant's witnesses, Mr Arthur the former road worker and trade union convenor who had transferred to AMEY, Mr Watling, Mr Hardesty and Mr Meloy. This is a very clear indication that the basic rate of pay (without bonus) for the County Council was below the market rate for the job. The workforce, or certainly the more efficient part of the workforce, would have found similar work in the private sector on higher pay. This establishes that the market rates for these parts of the workforce were clearly above the basic rate paid to them. The essential question we have to ask is whether the respondent has satisfied us that the total remuneration package of the Council was or equated to the market rate…"
"In conclusion we are satisfied, having reviewed the relevant evidence that our conclusion in the original judgment was correct. The respondent has established that the market rate was higher than the basic rate of pay without bonus but it has not established how much higher and we have not been provided with the evidence from which we could reach any sensible conclusion as to what part of the difference can be attributed to such a factor. In this connection, no evidence has been offered by the Council that at any time meetings or discussions took place amongst managers in County Contracting Services indicating that the Council had in mind that some supplement was necessary to recruit a shortfall or retain the existing workforce. The Council's positive evidence was almost exclusively restricted to the productivity issue."
"If there is evidence from which the Tribunal could find discrimination, such as evidence showing disproportionate effect, has the respondent proved the complete absence of sex discrimination, as to which see below, or that the difference in pay is objectively justified applying the Bilka test."
"22.1 …Applying the tests set out in paragraph 20.3 above, we were satisfied that there was ample evidence from which we could infer, in the absence of an explanation, the existence of sex discrimination, at least in relation to bonus. First, the statistical evidence demonstrates that all of the comparator groups, which contained at most only one female, did receive a bonus, and a bonus which averaged some 27% across the board in highways according to Dr Whitmore. The claimant groups not in receipt of a bonus were overwhelmingly female; the lowest majority being 4 to 1 amongst the 281 support workers in DMH Group Homes. We take into account that the total number of male employees in receipt of a bonus is 218 out of 650 male comparators, shown in the statistics set out at Volume 1 pages 469-470 under the heading Group 8 comparators, which is not a list of all male White Book employees of the Council. Equally that document shows that there are 4,497 white book, or former white book female employees and only one in receipt of a bonus. It is not necessary for the underpaid group to be "almost exclusively female" which were the facts in Enderby , it is sufficient if a significant majority of the disadvantaged group are women. Secondly, we have considered the nature of the jobs done principally by the claimant groups. Although the precise figures have not been given to us, there is clear evidence from the claimant's witness statements including those for the time points that a large proportion of the carers, cleaners and kitchen assistants are part-time. They are jobs traditionally done by women and fit around child care responsibilities. There is no evidence that any of the comparators, doing traditionally male jobs, outside in the open air and requiring physical strength, were done part time. There is, of course, no evidence that any woman has been refused access to such jobs, but by their nature, they are jobs which are unlikely to be attractive to women and would not fit in with part time working. We conclude that there is in these respects clear evidence from which we could conclude the presence of indirect discrimination at least. 22.2 There is another pay differential to consider. That is the removal of other pay enhancements from the carers affected by the 1990 and 1994 agreements, and new staff in those employments after 1994, again the figures demonstrate that these groups are overwhelmingly female. There is no evidence that any predominantly male groups ever had enhancements removed, although numbers of road workers and grounds maintenance operatives have reduced over the years. The only evidence possibly pointing away from discrimination is the fact that some of the claimants' jobs in care in the field of DMH did not have enhancements reduced. It is not entirely clear why this part of the group was excluded and we did not consider it right to speculate. We find nevertheless, that the evidential threshold has been achieved in respect of the group of carers who had pay enhancements removed."
"First, as we have indicated in the previous paragraph, there is a marked similarity between the facts in this case and in Ratcliffe . Terms entitling the claimant groups to an enhanced or higher rate of pay were removed, ostensibly in order to enable the groups to compete under CCT, or, as Mr Siegal described it, the mixed economy of care. In reality, it cloaked discrimination. There is no evidence that in respect of this work group the trade unions connived at this pay reduction. The contemporaneous documents indicate that they accepted it under considerable protest. The respondent cannot rely upon the Royal Copenhagen principle. Nor, in our view, can such a disproportionate result be justified by cost considerations. The reality of the situation is that there was enforced upon those work groups lower pay in circumstances which clearly demonstrated sex discrimination. Even if the only alternative was that the respondent would have had to close care homes and cease care provision in favour of the private sector, about which factual proposition we have some doubts, that would not have justified the total abolition of enhanced pay terms for these work groups, and reduced pay rates for new starters."
"You look at the two contracts; you ask yourself the common sense question- is there in each contract a term of a similar kind i.e. a term making a comparable provision for the same subject matter."
"If the respondent's submission on this point is correct, the respondent would not have to establish a GMF defence, nor to justify a prima facie discriminatory pay scheme which benefited workers of a particular sex. It would be open to an employer to construct a scheme in such a way or of such a kind that it was beyond challenge by a claimant of the opposite sex doing work rated as equivalent or of equal value by introducing elements into the scheme which could only practicably be applied to the benefiting group. This would be a surprising result. The Tribunal accepts that the terms to be applied to the woman's contract must be of a similar kind of that in the man's contract and accepts that the words "similar to" and "corresponding" should be given an equivalent meaning, but there is no necessity to interpret the words "similar" as meaning "identical"
"Civil trials are conducted on the basis that the Court decides the factual and legal issues which the parties bring before the Court. Normally each party should bring before the Court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the Court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. … The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled and the Court requires to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the Court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision but a new case advanced on a different basis. …"
"There must be a limit to the number of times the claimant may change comparator, or to put it another way, a time by which the claimant must make an election as to which comparator or comparators finally to rely upon. The latest, in the Tribunal's view, is before the end of the hearing which determines the issue and certainly before a judgment has been given. We do not think that there are any exceptional circumstances which apply here to allow such an amendment."