Poetic justice? My take on Gibson v Sheffield, the equal pay case due at the Supreme Court in October*

The equal pay case of Gibson v Sheffield City Council has taken five years to work its way up from an initial tribunal hearing to the Supreme Court, the highest in the UK.  Mrs Gibson is a care worker employed by the Council.  She initially brought her claim alongside Mrs Crosby, also employed by Sheffield, who worked as a cleaner.  Both women worked in jobs rated as of equal value to street sweepers and gardeners, but the women were never included in the Council’s bonus scheme.  Crosby was successful in her equal pay claim because it was accepted that bonus payments could have been paid to cleaners. Mrs Gibson has so far been unable to establish that she too should be entitled to equal pay with her comparator men.  The courts have said: ‘the culture within the care sphere [is] that such payments would not be conducive to personal care’.  The Supreme Court must rule on this issue: ‘Where it is shown that the genuine material factor for a difference in pay between predominantly female and male comparator groups, performing work of equal value, is not sex, is an employer required to objectively justify the difference in pay?’. 

Taking as inspiration the poem ‘Albert and the Lion’, made famous by Stanley Holloway reading in a Yorkshire dialect, I offer an interpretation.

There’s a famous pay case called Gibson,

That’s up to the Law Court Supreme.

And Sheffield Council is claiming,

Equal pay law sits well with their scheme.

 

This grand little pay plan in Yorkshire,

Pays up pretty plenty to men,

With thirty eight percent bonus,

Now brought under the spotlight again.

 

Tribunal: they argued in defence,

“The reasons are fiddlin’ and small.”

“We made male workers work harder.”

Productivity could explain all.

 

Bonus never was paid for care work,

Women, they worked hard enough,

“Patients, school meals, the disabled?”

“Can’t be measured the same as men’s stuff.”

 

So, seeking a genuine factor,

They said to the Court: “It is true,

“We agreed to pay the men extra,”

“But a sex taint you cannot construe.”

 

“We can see that women don’t like it,”

“But Armstrong allows us to claim,”**

“Disparity not based on gender,”

“Is enough to remove us from blame.”

 

Interpreting discrimination,

Will lie at the heart of this case.

Sheffield must now face the question,

Will it have other tests to embrace?

 

Explaining the carers’ pay difference,

May require additional steps,

As indirect discrimination,

Has some justificatory tests.

 

If Sheffield tries justification,

Lyn Gibson will no doubt refrain:

“My care work, you valued it equal,

With street sweepers, gardeners.  The same!”

 

So straight ‘way this brave female carer,

Will point out, on bonus design,

Dinner times, bathing and school runs,

Should be paid along Enderby lines.***

 

Pam Enderby’s case did determine,

A court must think differently when,

Criteria, practice, provisions,

Give statistical favour to men.

 

Employers should have to account for,

A fair set of standards in pay,

Showing proportion, necessity,

To comply with the law of the day.

 

If Gibson successfully argues,

tho’ a genuine factor remains,

The burden should still lie with Sheffield,

To objectively justify aims.

 

All Councils will watch the Lord’s judgment,

With more than a morsel of fear,

“How much to settle the matter?”

Could be more than they usually pay . . .

* Heavily influenced by Marriot Edgar’s, Albert and The Lion

** Armstrong v Newcastle Upon Tyne NHS Hospital Trust [2006] IRLR 124 CA

*** Enderby v Frenchay Health Authority, C-127/92 [1993] IRLR 591 ECJ