UK Employment Law\ Employer \ Equal Pay
Equal pay
There are a number of Acts and Treaties, which cover this part of Employment Law.
Equal Pay Act 1970
This Act works by automatically incorporating an‘equality clause’ into contracts of employments. The Act thereby modifies all the terms to make sure an agreement is not less favourable to one person of the opposite sex. Any employee who believes he or she is being treated less favourably can bring a claim. The Act does not only mean equality of pay, but equality in all contractual entitlements. Thus, if one person gets more holiday than another, just because they are different sexes, then it could be an answerable case under the Act. It also covers terms for: bonuses, subsidies and benefits. The instruments of the Act apply to all employees – whether male, female, part-time or full-time.
Article 141 of the EC Treaty
This European piece of law covers any benefit received as part of an employment package. The definition is broader than simply covering ‘pay’. Aggrieved employees may be able to find a remedy in this Article where English Employment Law does not.
Sex Discrimination Act 1975
This Act, regulating discrimination, set up the Equal Opportunities Commission. This body’s main duties worked towards outlawing discriminatory practices. It also aimed to promote equal opportunities between the sexes. It has now been subsumed into the Equality and Human Rights Commission.
The body can:
- Bring legal proceedings and seek court injunctions restraining the repetition of an unlawful act,
- Start a preliminary action before an industrial tribunal;
- Give guidance to anyone who appears to have a complaint.
Gender Equality Duty 2007
This instrument demands that all public authorities promote gender equality and remove all sex discrimination. An Equal Pay claim can be initiated on the basis of comparing one person’s job to that of someone of the opposite sex.
A person can bring a claim if they believe that a person of the opposite sex is being given different terms and/or pay for carrying out the same job. Roles for employees must be the same or broadly similar. In assessing whether there would be a case to answer, the work would be examined to see how similar it is and what significant differences are apparent. These points will then be used to see if they are of practical importance to the employment terms and conditions.
A claimant may have a case if it is discovered that people carrying out different jobs are on the same grade, but paid differently according to gender. Thus equality is an issue when an employer has carried out a job evaluation. A claimant might have a role rated as equivalent to that of a comparative role – though in fact they can be entirely different jobs. Such evaluation must comply with the Equal Pay Act.
There are also occasions when two people of opposite sexes are carrying out different jobs that are deemed to be of equal value to the employer – but they are being paid different rates. A Tribunal can bring in an independent expert to evaluate the jobs and enter a report to be judged by the hearing.
Decisions in equality cases are made by assessing roles carried out by comparative workers from the opposite sex. A claimant must make sure all possible ‘comparators’ are stated from the outset of the claim because it is difficult to add more once a complaint has been lodged. The comparator must be in the employment of the same company, or associated companies. However, if Article 141 of the EC Treaty is being used, the comparator only has to be in ‘the same establishment or service’.
The Employer’s Defence
An employer’s main defence is to prove that any differential in pay, terms or conditions between two sexes is down to a ‘genuine material factor’ and not down to gender. He or she cannot use one that is in any way affected by a factor unintentionally having the effect of disadvantaging one sex more than the other. Such a factor could be where a part-timer is given fewer benefits than full-timers.
Other defences:
- An employer could provide evidence that market forces were the reason;
- An employer can show the employee has improved terms because of genuine progression and/or improvement.
- An employer has ‘red circled’ the pay to protect it. However, this may provide a reason, but not provide justification based on sex discrimination laws.
- An employer may have given the comparator a higher value of pay and terms under a Job Evaluation Scheme. This could be seen as a valid defence under equality laws. A tribunal would reject this defence if the scheme is proven to be invalid or discriminatory.
- An employer may award more pay and better terms based on an employee’s qualifications – but clear evidence needs to be provided.
