Yet another EAT decision in the long-running North-East equal pay litigation was handed down last week.
In Bainbridge v Redcar & Cleveland Borough Council (no. 3), Elias P. held:
- employees whose jobs are rated as equivalent under a job evaluation scheme cannot, unlike in cases involving like work or work or equal value, backdate their claims for six years. The claims arise on the date of the job evaluation study, and cannot be backdated (notwithstanding that the nature of their jobs would be the same) (paras. 34-37)
- no uplift to compensation should be awarded because of the employer's failure to hold a meeting with individual employees under the statutory grievance procedure. The nature of the employees' conditional fee agreements with their solicitors meant that they could not have settled the claims themselves (and would not have understood the issues in any event), and therefore such a meeting would have been futile - amounting to an exceptional circumstances allowing for no uplift to compensation (para. 88). The EAT was critical of the use of CFAs in this situation (paras. 57-58), although made it clear that there was no suggestion of improper or unethical conduct by the Claimants' solicitors.
- (by a majority), employees are free to bring fresh proceedings for equal pay, in respect of the same period, citing a new comparator. The principles of issue estoppel and cause of action estoppel do not prevent the Claimants having a second bite at the cherry - whether successful or unsuccessful first time around - with a different comparator (paras. 124-130)
This is an interesting equal pay judgment, and worth reading if you practice in that area.
Bainbridge v Redcar & Cleveland Borough Council