WORK LIFE - THE LEGALITY OF EQUAL PAY

Although the National Joint Council for Local Government Services has reached agreement on the national pay increase, councils will continue to struggle with the need and desire to ensure equal pay for their workers at a cost that is acceptable and within an overall pay structure that makes organisational sense.

Economic and market pressures on different parts of the organisation make the production of an affordable but challenge-proof pay policy a dilemma that many are finding hard to resolve.

Pay equality is likely to be

an issue for the Pay Commission established as part of this year's NJC Advisory, Concilation & Advisory Service-assisted settlement.

But, following the long-awaited decision of the European Court of Justice in Lawrence and Others v Regent Office Care and Others (Case C-320/00), published on 17 September 2002, one issue councils and the commission may not have to worry about is the possibility of equal pay claims being made between staff of different councils.

The court said that, while a member of staff may be able to cite an equal pay comparator working for another employer, this can only be done in specific circumstances where it is clear that the terms and conditions applied by both employers derive from a single source, which, as the court puts it, 'is responsible for the inequality and could restore equal treatment'. This could include statutory agreements that apply to, say, teachers, but probably not voluntary collective arrangements such as those set out in the NJC's Green book.

Staff bringing the Lawrence case had previously worked for North Yorkshire CC but transferred to a private contractor.

They were claiming equal pay with former council colleagues in line with the long-held view of trade unions that cross-employer claims should be permitted where the workers were employed in the same service.

In rejecting their claim, the court said the key test was not whether the staff were in the same service, but whether their pay and conditions were set by a single body that could, of itself, put right any wrongs.

The Green book does not dictate the pay and conditions of individuals or groups of staff as such, as its provisions are not in themselves binding in law - councils can and do opt out of its provisions. It merely provides a system whereby a council can decide what to pay its staff.

Apart from making comparisons between the staff

of different councils much less likely, the decision in Lawrence means contractors undertaking local government work will be able to determine their staff's pay without necessarily worrying about equal value comparisons with the staff of the council they are contracted to.

Tim Rothwell

Director, HR Consulting Tribal GWT