Equal pay: pay protection following job evaluation scheme was discriminatory

In Redcar & Cleveland Borough Council v Bainbridge and others; Surtees and others v Middlesbrough Council [2008] EWCA Civ 885 the Court of Appeal upheld the decisions of two employment tribunals that temporary pay protection arrangements, introduced to cushion the impact of a job regrading exercise on a predominantly male group of employees, were indirectly discriminatory. The Councils therefore had no "genuine material factor" (GMF) defence to equal pay claims by female council workers whose jobs had been rated as equivalent under a job evaluation scheme (JES) to the male workers whose pay had been protected.

The court also held that the existence of separate collective bargaining for two groups of workers will not be a complete GMF defence if there is a disparate impact on one sex which is not justified; a job evaluation scheme does not provide a basis for a "rated as equivalent" claim for periods before the scheme is in operation; and a "rated as equivalent" claim does not give rise to res judicata defence in respect of a subsequent "equal value" claim for the same period. It also upheld the EAT's decision in Bainbridge to award no uplift for breach of the statutory grievance procedures