Equal Pay Claims

Equal Pay Claims and Employment Tribunals

A. GENERAL

Q. How do equal pay claims work?

A.     The legislation is the Equal Pay Act 1970. This makes it unlawful for an employer to discriminate between men and
        women in relation to their terms and conditions of employment, including pay. All contracts of employment include an
        implied ‘equality clause’ which is the basis for an individual’s equal pay claim.

Q. What does an equal pay claimant have to prove?

A. A claimant has to identify a comparator of the opposite sex who is paid more and employed on:

‘like work’
‘work rated as equivalent’ under a job evaluation or
‘work of equal value’.

B. COMPARATORS

Q. Who can be a comparator?

A. The comparator has to be:

of the opposite sex to the Claimant;
employed ‘in the same employment’ as the Claimant. A member of staff in a Community School is not in the same employment as a member of staff in a Voluntary Aided School even if the schools are in the same Local Authority unless there is an agreement between the LA and the governors of the VA school that the LA is the employer;
an actual person not a hypothetical comparator. It is not enough for a woman to show she is being poorly paid because of her sex: she has to point to an actual comparator.

Q. Is it enough to identify the group of employees from which a comparator could be found?

A. It should normally be sufficient to do this.

C. EQUAL PAY CLAIMS

Q. What is ‘like work’?

A. There are two components to ‘like work’. It must be

work of the same or ‘of a broadly similar nature’ and
any differences between the two sets of work are not of ‘practical importance’ either in their nature or extent.

Q. What is work ‘of equal value’?

A. This could be a comparison between two entirely different jobs. One of the first equal value claims involved a canteen
worker and a shipyard painter.

Q. How are ‘equal value’ comparisons made?

A. The comparison is based on the demands of the respective jobs under headings such as effort, skill & labour. Usually an
independent expert is brought in.

Q. Does ‘work rated as equivalent’ mean a job evaluation?

A. Yes

Q. Are there any set conditions for job evaluations?

A. No. The Equal Pay Act just says that the jobs must have been given an equal value in terms of demands made on the
respective employees under various headings in a job evaluation study.

Q. Must the rating for the two jobs be identical?

A. No. The Claimants’ job can be rated equal or greater in value.

D. DEFENCES

Q. How can the employer defend an equal pay claim?

A.      If the Claimant proves that she works on ‘like work’, work rated as equivalent’ or work of ‘equal value’ it is presumed the
         difference in pay is because of her sex unless the employer can show the difference in pay is genuinely due to a material
         factor ie a particular reason why the man is paid more. This is known as the genuine material factor (GMF) defence.

Q. What are the requirements of a GMF?

A. The GMF must be:

genuine, not a sham
a material difference ie significant and relevant
not discriminatory.

Q. Can an employer rely on historical pay deals as a GMF?

A.   This is not a guaranteed GMF. In one case female support staff claimed equal pay to male colleagues with bonus
      payments. The employer pleaded a GMF defence because these bonuses had been negotiated with the trade union for
      over 30 years. However, in reality the bonus payments were a sham to avoid government pay restrictions and they were
      inherently discriminatory.

Q. When could an historical pay agreement e a GMF defence?

A.   In another case the employers’ GMF defence succeeded where qualified teachers in special schools were paid more than
      instructors under two separate national pay scales. The House of Lords decided this was a GMF and the explanation for it
      was non discriminatory.

E. TIME LIMIT

Q. What is the time limit for an equal pay claim?

A. This is not a simple answer. Unless the woman has a disability or the employer has deliberately concealed relevant
information the time limit is six months and it starts at the end of the employment for which she is claiming equal pay.

Q. Explain ‘end of employment’

A.      The clearest example is when an employee resigns or is dismissed .But also a new contract with the same employer
         can be the end of an employment which sets time running. In a number of reported cases Claimants who have changed
         jobs in the same Local Authority have been out of time in their claims except for their current jobs.

Q. What if my hours have been increased and my job description has changed?

A. Provided your original contract is still in place this is a variation of contract not an end of employment.

Q. Does a TUPE transfer start the 6 month time limit?

A. This is a complex question and it is safest to assume that it will be argued that the time limit does start on a TUPE
transfer.

Q. You have said the time limit is 6 months for an employment tribunal claim. Can equal pay claims be made in the courts and what is the time limit there?

A. The time limit for breach of contract claims in the civil courts is six years. A Supreme Court case in 2012 confirmed that claimants who were over the six months tribunal limit could bring their claims in the High Court, taking advantage of the six-year court time limit.

F. GRIEVANCES

Q. Must I take out a grievance before making a tribunal claim?

A. Before April 2009 this was mandatory. A tribunal claim was rejected if the Claimant had not submitted a grievance and
then waited 28 days before sending in the tribunal claim.

Q. Should I nevertheless consider an equal pay grievance?

A. Yes, a grievance is a good opportunity to establish facts and consider any defence offered by the employer.

Q. Does the grievance have to give all the information about the equal pay claim?

A.      The grievance does not need to be a full legal submission but it must give sufficient details of the claim to enable the
         employer to address the grievance. Following a Court of Appeal decision in 2009, it is not necessary to name a
         comparator in the grievance.

Q. What is an equal pay questionnaire?

A. It is a standard form (see foot of page) that an employee can use to ask the employer questions, the answers to which
will help the employee decide whether there could be a reasonable equal pay claim.

G. COMPENSATION

Q. If my case is successful will I be awarded arrears of pay?

A.      Your contract will be changed to put your pay in line with your comparator and as well in cases where the Claimant is not
         disabled and there has been no concealment of relevant information by the employee you can be awarded a maximum of
         6 years arrears of pay .But see H below.

Q. When does this 6 years start?

A. From the date the tribunal proceedings started.

Q. Are arrears taxable?

A. Yes.

Q. Can I get interest on arrears?

A. Yes. Tribunals award simple interest starting on the halfway date between the start of the equal pay contravention and
the date of the tribunal award.

Q. Is this different in Scotland?

A. Yes. Arrears of pay go back 5 years not 6.

H. ‘WORK RATED AS EQUIVALENT "CLAIMS AND ARREARS

Q. If I claim equal pay under a JE scheme will I get arrears of pay?

A. A Court of Appeal decision in 2008 says no.

Q. Why?

A.      Even though ‘like work’ and ‘equal value’ claims can be backdated the Court of Appeal said claims based on a JE could
         not be retrospective. A JE rating has no force before the implementation of the JE so the jobs can not be treated as
         equally rated before the JE.

I. TRIBUNAL LOGISTICS

Q. How long will a tribunal claim take?

A.      It is impossible to predict this in advance. Nationally there are more equal pay claims (58,500 in 2007/08) than unfair
         dismissal claims and they are inevitably complicated legal issues to deal with if the employer lodges a defence. Many
         equal pay claims are multiple claims which means that the first task is for the representatives and the tribunal to set up
         detailed case management arrangements.

Q. Can I pin you down to a timescale?

A.      Unless it is a straightforward case expect it to take at least 2 years. Apart from the complexity of these cases employment
         tribunals have limited resources and the vast number of claims inevitably delays things.

Q. Is there anything else I should know?

A.   Equal pay law is developing rapidly. Mass claims in particular are raising complicated and technical legal points and
      decisions in the Employment Appeal Tribunal, Court of Appeal, House of Lords and European Courts have changed the
      way equal pay claims are decided.

January 2009, Updated May 2009

Further information:

Equal Pay Questionnaire (pdf)

Unblocking the route to equal pay in local government (LGE, November 2006)

Contact:

Solicitor David Brierley
Email: davidbrierley@voicetheunion.org.uk