Supreme Court 'missed opportunity' to clarify equal pay law, expert says

Dinner ladies and female care workers had historically been excluded from a bonus system made available to male gardeners and street cleaners. Selwyn Blyth, an expert in equality law with Pinsent Masons, the law firm behind Out-Law.com said that the amount of the settlement paid to up to 900 workers was "likely to be in the millions".

Similar cases have occurred in many local authorities, where historically certain roles such as refuse collection and caring have traditionally been carried out by only one gender.

Last year the Court of Appeal found in favour of the female workers, who had argued that productivity bonuses granted to male street cleaners and gardeners meant that their colleagues were being paid between 33.2% and 38% more for work the council said was of equal value.

The council had argued that the bonuses had nothing to do with gender but were paid to boost productivity. It claimed that the predominantly 'female' jobs could not be measured in the same way, and therefore the differences in pay did not need to be objectively justified.

Equality law expert Selwyn Blyth admitted to being "disappointed" that the Supreme Court was not given the opportunity to clarify the law.

"This was a missed opportunity for the court to look at what is an ambiguous, difficult area of employment law," he said. "The case could have clarified in what circumstances, if any, an employer would be able to rely on a historical productivity arrangement which was gender neutral."

A similar previous case involving Newcastle upon Tyne NHS hospital trust had suggested that an employer would be able to justify productivity bonuses where these were applied in a gender neutral way, Blyth said.

"It would be pretty unlikely to come across a case where an employer was actively trying to discriminate against its female employees. But it doesn't matter how a policy came about if women are substantially disadvantaged," he said.

Indirect sex discrimination can occur where an apparently neutral provision is applied in a way that puts workers of one sex at a particular disadvantage compared to the other. It is a defence if an employer can show that the provision is objectively justified.

"Ultimately this is a more difficult test, but it is one that is more consistent with EU law," Blyth said.

Julie Toner, Director of Human Resources at Sheffield City Council, said that the Council resolved equal pay status across its workforce last April. The terms of the settlement agreement were confidential, she said, although media reports suggested the council was facing compensation payments of up to £20 million following the Court of Appeal judgment.

Trade union Unison, which had supported the Sheffield employees throughout their legal battle, has previously said the decision could have implications in around 40,000 similar cases across the country.