(first) Julie Armstrong And Others ("the Hbj Claimants) Against Glasgow City Council And (second) Jennifer Mcdonald And Others ("the Unison Claimants") Against Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lady Paton,Lord Justice Clerk |
| Neutral Citation | [2017] CSIH 56 |
| Date | 18 August 2017 |
| Docket Number | XA71/16 |
| Court | Court of Session |
| Published date | 18 August 2017 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 56
XA71/16
XA72/16
Lord Justice Clerk
Lady Paton
Lord Menzies
OPINION OF THE COURT
delivered by LORD MENZIES
in the Appeals
by
(FIRST) JULIE ARMSTRONG AND OTHERS (“THE HBJ CLAIMANTS”)
Appellants
against
GLASGOW CITY COUNCIL
Respondent
and
(SECOND) JENNIFER McDONALD AND OTHERS (“THE UNISON CLAIMANTS”)
Appellants
against
GLASGOW CITY COUNCIL
Respondent
For the HBJ Claimants: J J Mitchell QC; HBJ Gateley, Solicitors
For the Unison Claimants: Dalgleish; Unison Legal Services
Respondent: Napier QC, Miller (sol adv); Clyde & Co, Solicitors
2
18 August 2017
Introduction
[1] These are appeals against a decision of the Employment Appeal Tribunal (“EAT”)
dated 15 March 2016 in which the EAT upheld the decision of the Employment Tribunal
(“ET”) dated 9 December 2013. In that decision, the ET determined that the respondent’s Job
Evaluation Study (“JES”) was valid in terms of the Equal Pay Act 1970 (“EQP”) section 1(5),
and that there were no reasonable grounds for suspecting that it was otherwise unsuitable to
be relied upon in terms of section 2A(2A)(b) of EQP.
[2] These appeals arise out of the same factual background as that discussed in the
earlier decision of this court in Glasgow City Council v Unison Claimants and Others [2017]
CSIH 34. That appeal concerned the respondent’s pay protection provisions, whereas these
appeals are concerned with the validity of the respondent’s JES, which was carried out as
part of its Workforce Pay and Benefits Review (“WPBR”). This was designed to implement
the move to single status for the respondent’s employees so that, following the review,
separate collective agreements would be replaced with one scheme which brought all
Administrative, Professional, Technical and Clerical (“APT&C”) staff and manual workers
together under one pay scheme. To effect this, a JES required to be carried out in order that
the respondent could implement a new, unified pay and grading structure. That involved
creating job “families”, developing role profiles, evaluating role profiles, and allocating role
profiles to job families. Through that process, each job was given a grade score. The
respondent then assessed Work Context Demand (“WCD”) and each job was also given a
score under that heading.
3
[3] The appellants brought claims in terms of EQP challenging the design, methodology
and implementation of the JES. They were unsuccessful before the ET and the EAT. They
now appeal to this court. Although the appeals were lodged separately, they were
presented together and the same arguments applied in each case.
The statutory framework
[4] Sections 1 and 2A(2A) of EQP provide the statutory context for the exercise which
required to be carried out by the ET and the EAT. The relevant passages are in the following
terms:
“1.-
(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.
(2) An equality clause is a provision which relates to terms (whether concerned
with pay or not) of a contract under which a woman is employed (the ‘woman’s
contract’), and has the effect that-
…
(b) where the woman is employed on work rated as equivalent with that of a
man in the same employment-
(i) if (apart from the equality clause) any term of the woman’s contract
determined by the rating of the work is or becomes less favourable to the
woman than a term of a similar kind in the contract under which that man is
employed, that term of the woman’s contract shall be treated as so modified
as not to be less favourable, and
(ii) if (apart from the equality clause) at any time the woman’s contract
does not include a term corresponding to a term benefiting that man included
in the contract under which he is employed and determined by the rating of
the work, the woman’s contract shall be treated as including such a term.
(c) where a woman is employed on work which, not being work in relation to
which paragraph (a) or (b) above applies is, in terms of the demands made on her
(for instance under such headings as effort, skill and decision), of equal value to that
of a man in the same employment –
(i) if (apart from the equality clause) any term of the woman’s contract is
or becomes less favourable to the woman than a term of a similar kind in the
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