Westwater Advocates’ Calum MacNeill QC in Inner House equal pay victory

On the introduction of the new pay arrangements following the implementation of a job evaluation scheme, those employees who would otherwise have suffered an immediate drop in pay had their pay protected for three years. The result was that predominantly female employees whose work had been rated by the JES as equivalent to that of their predominantly-male comparators were paid less than them for that period.

The claimants, some backed by Unison and some formerly by equal pay campaigners Fox Cross and now by HBJ Solicitors, maintained that to comply with the Equal Pay Act 1970, the claimants should have had their pay matched with those who were on pay protection, even though they had not been on the higher pay rates prior to the introduction of the WPBR.

The council argued that the pay protection arrangements were a proportionate means to a legitimate end, namely the implementation of the single status agreement.

The Employment Tribunal held that the pay protection arrangements were proportionate but the claimants succeeded on appeal to the Employment Appeal Tribunal.

Glasgow Council appealed to the Inner House.

In a 26–page judgment issued today, the Inner House comprising the Lord Justice-Clerk, Lady Dorrian, Lady Paton and Lord Menzies refused the council’s appeal, holding that the ET had not applied its mind to the correct question when considering proportionality. The measure in question was not the payment of pay protection but the exclusion of the claimants from the scheme.

While it might have been possible for the council to mount a defence on the basis of the cost of making transitional payments to the claimants for the pay protection period (which had been described by the council in the ET as “enormous” and “absurdly expensive”), no such defence had been established before the ET.

Mr MacNeill’s junior was David Parratt (Terra Firma). The HBJ claimants were represented by Jonathan Mitchell QC (Arnot Manderson), the Unison claimants by Graeme Dalgleish (Hastie Stable) and Glasgow Council by Brian Napier QC (Hastie Stable).