To satisfy a tribunal that a comparator should be treated as being "in the same employment", a claimant would ordinarily need show that their comparator, if employed at their establishment, would be subject to the same or broadly similar employment terms that the claimant was employed under.
In North and Others v Dumfries and Galloway Council (Scotland)  UKSC 45, the Supreme Court considered the correct approach to equal pay claims brought under the Equal Pay Act 1970 , s.1(6) (now Equality Act 2010, s.79) where the Claimants and their comparators were employed in different establishments.
The Supreme Court determined that the starting hypothesis was that comparators were transferred to do their present jobs in a different location. The question was whether in that event, however unlikely, the comparators would remain employed on the same or broadly similar terms and conditions to those applicable in their current place of work.
An aim of the legislation was to allow comparisons to be made between workers who did not and never would work in the same workplace. A further aim was to secure equality of treatment, not only for the same work, but also for work rated as equivalent or assessed by the experts to be of equal value.
It was not the function of the "same employment" test to establish comparability between the jobs done. That was dealt with by EPA 1970, s.1(2). The function of the test was to establish the terms and condition with which the comparison was to be made. Its object was simply to weed out those cases in which geography played a significant part in determining what those terms and conditions were. Such a construction of EPA 1970, s.1(6) was more consistent with the requirements of EU law.
Elizabeth Dwomoh / 1st Aug 2013
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