Waving goodbye to second wave claims


24th March 2016

The Employment Appeal Tribunal upholds the Glasgow City Council Job Evaluation Study as valid but finds pay protection discriminatory and not objectively justified in this case.

Scottish local authorities engaged in a process of merging terms and conditions of manual workers and APTC (Admin, Professional, Technical and Clerical) staff.  That merger required local authorities to undertake Job Evaluation Studies to determine the relative value of work undertaken with a view to implementing fair and non-discriminatory pay structures. As part of the process of implementation Local Authorities provided 3 years pay protection to those suffering a drop in wages under the new pay structure.

Glasgow City Council (GCC) staff challenged the validity of their Job Evaluation Study and the pay protection paid on implementation. GCC made recourse to a Workforce Pay and Benefits Review (WPB Review) to address historic pay practices.  It was an unusual scheme because it produced two ratings for evaluation, referred to as “core or grade” and “work context and demand”.  Nevertheless the Employment Tribunal held that the WPB Review amounted to a valid job evaluation study. That decision has just been upheld by the Employment Appeal Tribunal on appeal.

GCC staff also challenged the payment of 3 years pay protection to those who would otherwise have suffered a drop of wages on implementation of the new pay structure. The Employment Tribunal held that the pay protection was discriminatory but objectively justified.  That decision was overturned on appeal. The Employment Appeal Tribunal held that there was no evidence as to the objective justification behind excluding GCC female workers who had previously been underpaid because of bonus arrangements and would have suffered a drop in pay and received pay protection but for those arrangements.

However it remains open to other local authorities to objectively justify their recourse to pay protection. As stated by the Employment Appeal Tribunal:

“We accept that in principle pay protection which continues indirect sex discrimination may be justified.  We accept that such justification may be ex post facto.  Each case will depend on its own facts. There requires to be a legitimate aim and a proportionate implementation of that legitimate aim.  The ET does not set out findings in fact [in this case] which support such a finding in law.”

Read the full Employment Appeal Tribunal Judgment

Morton Fraser MacRoberts LLP

MacRoberts LLP, one of the largest independently owned law firms in Scotland, was founded over 150 years ago by the MacRobert family. We are a leading Scottish commercial law firm with full-service offices in Dundee, Edinburgh and Glasgow with a client base that reaches across Scotland and beyond.

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