Veitch Penny LLP - Exeter | Crediton, Devon

Case

Hartlepool Borough Council & Others v Dolphin & Others
Employment Appeal Tribunal – 15 September 2008

Issues

(1) Equal pay
(2) Bonus schemes
(3) Material fact, defence and justification

Facts

The Claimants were all female employees employed by Hartlepool Borough Council as cleaners, leisure workers, kitchen staff and mini bus drivers etc. They were not entitled to receive a bonus, save for the kitchen staff who received a bonus as a result of previous litigation.

Claims were brought under the Equal Pay Act alleging that, when compared with other roles within the Council, they were being underpaid. They compared their roles with traditionally male roles such as joiners, electricians, painters, drivers, labourers and gardeners. These roles had, since the 1970s, been in receipt of incentive bonuses.

The Claimants alleged that they were performing work of equal value and/or work rated as equivalent to the male roles they were using as comparators.

At first instance, the Tribunal found that the Council’s bonus schemes were a sham. The reasoning behind their initial implementation in the 1970s was no longer relevant. From the evidence before the Tribunal, the bonus scheme could no longer be considered as an incentive. The Tribunal noted that the scheme had not been monitored or reviewed in any way since they were brought in. As far as the Tribunal was concerned, the reason for the schemes was “tainted by sex”. The Claimants were successful with their claim.

The Council appealed the decision to the Employment Appeal Tribunal (EAT). The Council alleged that the Tribunal should not have considered the absence of proper monitoring as to the continuing effects of the schemes amongst the workforce. It was of the view that, if in its own view it felt the schemes were achieving their original objectives, then that should be sufficient for the Tribunal.

Decision

The EAT found that the Tribunal had been correct to consider the failure to monitor the scheme. The questions to be considered were whether the scheme intended to achieve productivity improvements and whether they did achieve the intended improvement. In this particular instance, the reasons behind the scheme when introduced some 30 years ago could not be relied upon now. The appeal was dismissed.

Comments

This case neatly highlights the importance for employers to be able to demonstrate that schemes which create a difference in treatment between men and women should be monitored to ensure that their use continues to be justified. In this case, the Tribunal and the Employment Appeal Tribunal recognised that this could change over time.


Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.