Robertson and others v Department for Environment, Food and Rural Affairs, CA, 22 February 2005

Departmental comparisons

Robertson and others v Department for Environment, Food and Rural Affairs, CA, 22 February 2005

Six male civil servants, who worked in the Department for Environment, Food and Rural Affairs (Defra), brought equal pay claims. They sought to compare themselves with female civil servants working in the Department of the Environment, Transport and the Regions (DETR).

Although the claimants and their comparators had the same employer – the crown – their terms and conditions of employment differed, having been separately negotiated by their respective departments under delegated powers. For this reason, and because the male employees and their female comparators were not employed in the same establishment, the claims could not be brought under the Equal Pay Act 1970. Instead, the claimants sought to rely on EC Treaty Article 141.

As a preliminary issue, the tribunal concluded that it was permissible, in an equal pay case, for civil servants in one department to compare themselves with civil servants from another. The Employment Appeal Tribunal (EAT) allowed an appeal by Defra, a decision that was appealed by the employees. Dismissing the appeal, the Court of Appeal held that the principle of equal pay does not always and automatically apply whenever the claimants and their chosen comparators, are employed by the same employer.

Comparability depends on whether differences in pay are “attributed to a single source”, with the focus being on the location of the body responsible for making decisions on levels of pay. On the facts of the case, there was no ‘single source’ responsible for any pay differences. Responsibility for negotiating pay and conditions in the Civil Service rests with the individual departments.

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