Case round up

This week’s case round-up

Comparisons for equal pay
Aintree Hospitals NHS Trust v Reynolds, EAT, 2003, All ER (D), 10 Sep

The Aintree Trust took over the work and workforce of a health authority.
The authority’s employees were paid at rates fixed under a collective agreement
and these rates continued after their employment transferred to the Aintree
Trust. Following the transfer, the trust recruited new employees directly,
including Mr Reynolds, on different contractual terms and pay rates to the
transferred staff.

Reynolds claimed for equal pay and sex discrimination. In deciding his
claim, the tribunal compared Reynolds both to the staff transferred from the
health authority and to those recruited directly by the trust. The tribunal
found in his favour on the basis that the Aintree Trust could not show there
was a reason for the inequality in pay other than sex.

The tribunal’s decision was overturned by the Employment Appeal Tribunal
(EAT). It ruled that the tribunal had been wrong to compare Reynolds’ contract
terms both to the transferred staff and to those recruited directly by the

A comparison should have been made only with the directly recruited
employees. The EAT found that men and women were treated the same in both
groups and, as such, there had been no sex discrimination.

Redundancy selection — remember to act reasonably
O’Hare v Drake International Systems Ltd, EAT, 2003, All ER (D), 12 Sep

Mr O’Hare was employed by Drake International as a plant operative. A
downturn in business prompted Drake to carry out a selection exercise to effect
seven compulsory redundancies.

The manager responsible for carrying out the redundancy exercise adopted
three selection criteria: absences per period of employment (given the lowest
weighting), length of absences per period of employment and disciplinary
sanctions per period of employment (given the highest weighting).

The application of these selection criteria resulted in O’Hare being
selected for redundancy. He appealed on the basis that his absences were due to
industrial injury and should have been excluded but despite his appeal, he was

O’Hare’s dismissal was held to be unfair. The tribunal found that the
criteria applied were not unreasonable, but held that the manner of assessment
against the criteria was unreasonable – in particular, the rejection of
O’Hare’s suggestion that absences related to industrial injury should be

The tribunal’s decision was overturned by the EAT. The tribunal had wrongly
imposed its own view of the reasonableness and implementation of the criteria.
The correct question for consideration was whether the selection was one that a
reasonable employer, acting reasonably, could have made.

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