Employment Law Advocates

The fascinating case of Hartlepool Borough Council v Llewellyn concerns an issue which surprisingly has not been resolved in nearly forty years since the Equal Pay Act was passed, which is whether men who carry out the same work as women who are successful in equal pay claims can bring their own claims under the Act, using the successful women as comparators. Logic suggests that they can and the appeal against such a finding was indeed rejected by Justice Underhill. Dramatically, however, he also allowed a cross-appeal by the male applicants, with the effect that their claims could be backdated to the same date as the successful claims by their female colleagues. There was said to be no basis for suggesting that the backdating of pay was a legal fiction so could not be used for comparison purposes.

There was also an interesting discussion about a potential can of worms which could be opened. John Bowers QC and Christopher Jeans QC for the councils submitted that the analysis of the tribunal would allow men to bring claims even in situations where their female colleagues did not and Robin Allen QC, for the claimants, agreed but said that this was an acceptable state of affairs. Justice Underhill was not persuaded on the grounds that equal pay claims must be brought on the basis of a concrete rather than a potential comparison. These remarks were obiter and we will have to wait for another day for a final determination. In the meantime, leave has been granted to appeal to the Court of Appeal and it seems inevitable that they will look at this again. However, on the whole, the judgment seems impeccable.