4. Equal Pay Flashcards
pay includes
non discretionary bonuses overtime rates performance related benefits occupational benefits benefits in kind
Barber
pay includes occupational pension schemes
Shield v Holdings
“like” work
DIFFERENCES NOT OF PRACTICAL IMPORTANCE IF DIFFERENCES DO NOT IN FACT ARISE IN ACTUAL PERFORMANCE
- contractual obligations = irrelevant unless it led to material differences in practice
- do not compare notional paper obligations
- no diff in training so no material diff in job
British Coal v Smith (Lord Slynn)
T&C do not have to be identical , just “substantially comparable”
Rummler
CONSIDER WHOLE SYSTEM
even if particular citation seems to favour male workers, grading system is not discriminatory
AS LONG AS system permits other criteria for which women may show special aptitude
Danfoss
if pay system lacks transparency ..
R MUST PROVE it is not discriminatory if female E establishes average pay of women E is less
Maccarthy v Smith
can use previous occupier as comparator
diocese of Hallam trustees v Caonnaughton
can use successor as comparator
British Coal v Smith (comparator)
C MUST SHOW comparator was/is employed by R or associated employer
BUT C is NOT limited to workers from her establihsment
North & Ors v Dumphries
comparator can be @ R’s different establishments
+ BRITISH COAL did NOT introduce a “real possibility”/”feasibility” test that if comparator was transferred they would be on broadly the same terms as they are now
- this test is “unwarranted” and defeats object of equality
Murphy v Bord
can use hypothetical comparator
Lawrence v regent
NOT NEED SAME EMPLOYER
BUT CANNOT RELY ON ART.141 IF PAY DIFFERENCES CANNOT BE ATTRIBUTABLE TO A SINGLE SOURCE (otherwise no body responsible)
NO GENERAL GUARENTEE OF FAIRNESS (just guarantee between E and her r)
Allonby v Accrington
part time lecturer oursourced
- NO GENERAL RIGHT OF EQUAL PAY
- CAN ONLY BRING SEX D CLAIMS AGAINST OWN EMPLOYER
- otherwise no body responsible for inequality and which could restore equal treatment
- same work is neither here nor there
Bilka Kaufaus
part time workers excluded from pension scheme
- infringes s.119
R can justify on grounds it seeks to employ as few PT workers as possible if….
ONE - factor corresponds to real need of undertaking
TWO - appropriate with view of achieving objective
THREE - are necessary to that end
Rinner-Kahn
no sick pay for E working less than 10 hours a week (PT worker)
- art.119 precludes legislation if measure affects greater number of women
BUT MS CAN SHOW OBJECTIVE FACTORS TO JUSTIFY IT
Rainey v Glasgow
Sound administrative reason = can be MF
external administrative/economic efficiency arguments = can be MF
REJECTED Denning’s obiter in Clay Cross (that R must prove difference is due to personal reasons, e.g. skill/expertise) as “unduly restrictive”
Enderby v Frenchey
separate bargaining structures = can’t be MF
attractiong employees = can be MF if proportionate
Cadman v H&S Exec.
length of service = MF (rewarding experience)
UNLESS E CAN PROVIDE EVIDENCE RAISING SERIOUS DOUBTS that this is appropriate criteria for the job in Q
Redcar v Bainbridge
pay protection scheme = can be MF
BUT R failed to justify it –> clearly a superficial reason here (real reason = historical unlawful sex discrimination)
Allen v GMB
NOT proportionate NOT justified
TU prioritied pay protection rather than claims for past unequal pay
- TU deliberately omitted to give E advice and manipulated E with alarmist information about job cuts
Chagger v Abbey
CA upheld £1.3mn damages for future loss
- career destroyed by stigma of suing R
- original R liable even though its actions of future 3P in victimising E that causes loss
Bullmore v Pothecary
prospective r withdrew job offer after finding out about earlier claim
- previous R liable for damages re: loss earnings even though loss resulted from unlawful conduct of 3P
