David M Hutchison, head of Employment Law at Dallas McMillan, asks why councils are still struggling to get to grips with the equal pay issue.

In July 2023, the Employment Tribunal in Dundee issued their judgment regarding the reliability of Fife Councils’ Job Evaluation Scheme (JES). The Tribunal heard evidence relating to specific female-dominated roles including cooks, cleaners, catering assistants and carers. The unanimous decision of the Tribunal was that the councils’ evaluation did not meet the requirements set out under section 131(6)(b) of the Equality Act 2010. As such, there were reasonable grounds to suspect that the evaluations considered by the Tribunal were unreliable.

Was the outcome a surprise? For those involved in the litigation or have read the Judgment, the answer is a resounding no. The terms of the Judgment giving a damming verdict on those responsible for implementation of the councils’ JES. One of the main arguments made by the Claimants was the lack of transparency surrounding the Scheme. The claims were lodged by Dallas McMillan in 2016. Despite this, documents from 2018 relating to the evaluations were not retained by the council even though there was ongoing litigation. With these documents being unavailable, the council was left to rely on witness evidence. The Tribunal found such evidence to be ‘somewhat unsatisfactory’. Considering the lack of documentation, the Scheme was therefore left open to be manipulated by the council to the detriment of female employees.

The initial JES relied on by the council was from 2007 although there have been updates since. A legitimate question therefore is why are matters still ongoing in 2023? While some factors like the Covid pandemic was a factor, councils appear to continue to bury their heads in the sand. Despite the Court of Session finding in favour of Claimants against Glasgow City Council in 2017, not all claims against Glasgow City Council have been resolved. Glasgow City Council in June 2023 announced that the final bill for equal pay was likely to be around £770m. A similar figure has also been announced for Birmingham City Council in September 2023 with the council effectively declaring itself bankrupt. Tightening budgets will have an impact on the ability of councils to resolve ongoing disputes. While decisions have been found against Glasgow and Fife, other councils may be more optimistic about defending such claims.

So where do councils go from here? The simple fact that despite its long running history, equal pay claims are not going away any time soon. Further litigation is ongoing in North Ayrshire, Dundee and Coventry to name a few. Claims have already been settled with a large number of other Councils such as North Lanarkshire, South Lanarkshire and Falkirk councils. Although the Judgment in Fife relates to specific female roles, the same arguments will be made for other roles as well.

An option for councils (leaving aside the question of settling backdated claims) is to start from scratch with the evaluation of female dominated roles. There is no guarantee that such an approach is full proof. As we have seen from how councils have implemented such schemes in the past, will lessons be learned?

In a technical age, councils have moved away from the storage rooms filled with filing cabinets. Documents can be stored and scanned electronically with relative ease and limited storage space required. Therefore, councils should carefully think about how their proposed defence can be demonstrated to a Tribunal. Arguments that evaluations were thorough will carry little weight when there are not the documents to support such arguments.

Witnesses are key to any litigation. In Fife, Claimants gave evidence about the jobs they were doing on a day-to-day basis. No counter evidence was led by the council. Therefore, the Tribunal must consider which evidence is preferable. The witness who carries out the role on a day-to-day basis? Or a manager who remembers being part of a team evaluating the role 10/15 years ago but does not have the paperwork to refresh their memory?

Councils should procced with extreme caution considering the failures of Fife Council which were ruthlessly exposed during the course of the litigation. Early engagement may be crucial in avoiding spiralling costs that will be required to settle the litigation.