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The claims against both authorities, stretching over six years, arose out of the payment of bonuses to predominantly male workers. The claimants were drawn from a wide-range of groups, including caterers, cleaners and carers, with comparators drawn from, among others, highways, waste management and drivers. Broadly, the claimants submitted that the bonuses paid to the comparators had become automatically payable so the link with productivity had been lost. In the ET the Bury justification of genuine material factor under s1(3) of the Equal Pay Act 1970 was found to be a sham while in the case of Sunderland the ET found that their bonus schemes were not genuine and thus sex-tainted for some groups of workers. In the separate pay protection claim against Bury, the ET had upheld their s1(3) defence partly because of affordability.
In this judgment, Underhill J provides a comprehensive review of the relevant case-law, statutory provisions and the history of the various agreements regulating public sector pay grades. In the Bury bonus scheme claim, the EAT concludes, among other things, that the council had provided an explanation for the differential but that explanation was Enderby type indirect sex discrimination. Further that showing schemes to be non-discriminatory at their inception did not mean they would still be non-discriminatory 10 or 20 years later. In the Sunderland bonus claim, they state that at para 51
"It is important not to lose sight of the purpose for which the question is being asked. The comparators were being paid more than the Claimants for doing work which had been rated as being of the same value. That could only (so far as relevant for present purposes) be justified if the additional amount represented a reward for doing more than the basic work expected of them. The effect of the Tribunal's findings was that that was not the case. The fact that, as a matter of history, the level of work expected reflected what had once been regarded as exceptional does not mean that performance of the relevant tasks was exceptional during the relevant period or that that was what the bonus was being paid for.
On the pay protection claim, they concluded, among other things, that the practicability of payment was not a material consideration so the ET had erred in uphold the Council's defence and that affordability must be justified; that was not the case here.
