Cooksey and others v Trafford Borough Council and others UKEAT/0266/11
This case involved female staff members bringing equal pay claims in respect of various allowances paid to predominantly male sectors of Trafford Council's workforce. The EAT overturned on appeal a decision of an Employment Tribunal that the Council had failed to objectively justify "on call" payments that were "sex tainted". It did so on the basis that there was no other means of achieving the aim which the Tribunal had identified as "legitimate" and, therefore, the pay was objectively justified.
Decision
The EAT found that making payments to ensure suitably qualified staff were available during "on call" hours was the only means by which the Council could achieve its legitimate aim of "paying the on-call allowance to ensure that someone...was available to be called on". In the EAT's view, the Council's use of "on call" payments could therefore be justified as a proportionate means of achieving a legitimate aim, so that the Council could defend the claim even though the "on call" payments had been found to be "sex tainted".
Implications
On the face of it this decision might be viewed as broadening
the scope of an employer's ability to objectively justify sex
tainted pay disparities, by establishing a narrow legitimate aim.
However, the position is less clear than it might at first
seem.
The EAT overturned the Tribunal's decision on the basis that
there were no other means of achieving the legitimate aim, the EAT
having accepted that the aim was to pay staff to ensure they were
available during on call hours. Arguably though, this was a
conflation of both the aim (ensuring staff are available) and the
means (paying them). Had the legitimate aim been identified as
simply "to ensure the availability of suitable on call
staff", then the Tribunal's finding that the Council had
failed to establish proportionality might have survived, and the
Council's defence failed. It remains the case that the issue of
proportionality will be key to the defence of equal pay claims in
the vast majority of cases where objective justification is
required.
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