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Until recently, for a worker to challenge any inequality in pay or contractual terms and conditions, they would have to make a comparison with a real person of the opposite sex who is employed by the same employer (or possibly an associated employer) who is doing “like” work, “work related as equivalent” (under a job evaluation scheme) or “work of an equal value”.
However, a change in the Equality Act 2010 allows a claim of direct pay discrimination to be made where no real person comparator can be found.
This means that a claimant who can show evidence that they would have received better remuneration from their employer if they were of a different sex may have a claim under sex discrimination, even if there is no-one of the opposite sex doing equal work in the organisation.
Jobs of ‘equal value’
A ruling by the Supreme Court at the end of June 2013 handed women the legal right to demand the same pay as male colleagues doing a different job of ‘equal value’. The Supreme Court ruled in favour of more than 200 female classroom assistants and nursery nurses, backed by Unison, in an equal pay case against Dumfries and Galloway Council, which had taken seven years to get this far.
The female education workers argued that they should be paid the same as ‘comparable’ male workers employed elsewhere in the local authority but doing jobs of ‘equal value’ – as there were no direct male comparators doing the same job – such as road workers, groundsmen, refuse collectors and leisure attendants.
The Council argued that the men had a different place of work to the female workers, so could not be comparable. The male workers were paid bonuses on top of their pay that the women didn’t receive.
By ruling in favour of the women the Supreme Court overturned a previous appeal that found the women were not in the same employment as their male counterparts. The Court found that it was “no answer to say that no such male comparators ever would be employed at the same establishment as the women. Otherwise, it would be far too easy for an employer so to arrange things that only men worked in one place and only women in another”.
The Court went on to say that equality legislation was there 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 stands to reason, therefore, that some very different jobs which are not (or cannot) be carried out in the same workplaces may nevertheless be rated as equivalent or assessed as having equal value”.
In 2012, a landmark equal pay case delivered the verdict that workers now have six years (five years in Scotland) to make an equal pay claim in the High Court (rather than six months to make the claim in an employment tribunal).
In 2016 an employment tribunal found in Brierley and others vs Asda Stores Ltd that Asda store workers can compare themselves with depot staff for equal pay, as they are employed on ‘common terms’ under the equal pay parts of the Equality Act.
This case involves about 7,000 current and former hourly paid store staff (mostly female) who wanted to compare themselves to workers at the distribution depot (mostly male); the store staff said the work is of equal value but the depot staff were paid substantially more.
Asda had initially tried to stop the claims from proceeding to tribunal by arguing they should be heard in the High Court; however the Court of Appeal ruled an employment tribunal was appropriate. Asda argued that the shops and distribution centres were in different locations with different pay arrangements, so effectively Asda could pay what they liked.
The tribunal decided there were ‘common terms’ between them so a comparison could be made between the 2 groups of people – the terms for the shop staff and depot staff were broadly similar even though they were negotiated in different ways for each group, and there was a single source of the terms and conditions, namely the executive board of Asda.
Going forward the tribunal will look at whether the store work is of equal value to the depot work, subject to any appeal Asda makes to this preliminary tribunal finding.
The claims could go back to 2002 and may be followed by new claims.
Solicitors Leigh Day, who are acting for former and current Asda employees are also bringing equal pay claims on behalf of around 400 Sainsburys workers in similar circumstances.
A female Network Rail employee has been awarded £75,000 after winning an equal pay case in December 2016.
The employee, Tracey Myers, had worked as a training assurance specialist for Network Rail before being made redundant in 2014. The woman claimed that from the end of 2007, she was paid at times 37% less than a male colleague.
She took her case to tribunal on the grounds of unfair dismissal, harassment, and equal pay. However, the tribunal dismissed her first two claims. She said she was aware there was a disparity in what she was paid compared to male colleagues, but hadn’t realised the full extent until the claim went to tribunal.
Gender pay gap reporting
The 2015 Small Business, Enterprise and Employment Act has amended The Equality Act 2010 to require employers with 250 or more employees (in the private or third sector) to publish details of their gender pay gap.
The final draft of the regulations was published on 6th December 2016 and are scheduled to come into force on 6th April 2017. Government guidance is expected in due course. You can read full details of what we know so far here.
The Equality Act 2010 also made it unlawful for an employer to prevent or restrict their employees from having a discussion to establish if differences in pay exist relating to protected characteristics. It also outlaws pay secrecy clauses in contracts of employment.
An employer can currently require their employees to keep pay rates confidential from some people outside the workplace, for example a competitor organisation.
In addition, if an employee suffers a detriment because they have disclosed their pay details or sought those of another employee for the purpose of exploring if there is any pay inequality, this will constitute an act of victimisation under the Equality Act.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
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