Equal Pay Act (NI) 1970 Flashcards
Equal Pay Act (NI) 1970
Under the Equal Pay Act (NI) 1970 an employee has a right to equal pay with any employee of the opposite sex, known as ‘comparator’, who is doing work that is either:
- the same or broadly similar provided that where there are any differences in the work these are not of practical importance: this is known as ‘like work’
- different, but is rated under a job evaluation scheme as being work of equal value: this is known as ‘work rated as equivalent’
- different, but of equal value in terms of factors such as effort, skill, and decision-making: this is known as ‘work of equal value’
The right to equal pay applies to employees and workers.
Comparator?
A woman bringing an equal pay claim must be able to compare her terms with those of a man. This man is known as a “comparator”. The comparator must be in the ‘same employment’ as the claimant. This means they are employed by the same or an associated employer at the same workplace, or by the same or an associated employer at a different workplace where common terms and conditions apply generally or to the relevant classes of employees.
Unlike other types of discrimination, a woman cannot compare herself with a hypothetical comparator.
A woman can use a comparator who was employed in the past (a predecessor) but cannot compare herself with someone who is employed after her (a successor).
Under the Equality Act, if a woman cannot find an actual comparator, she can bring a sex discrimination claim instead. However, this applies to claims about pay only, not other contractual term.
Equality Clause
S66 EA 2010 incorporates an equality clause into all contracts of employment.
The practical effect of this provision is that if there is any term in a person’s employment that is less favourable than a comparator of the opposite sex, the contract is modified so that both have the same effect.
Additionally, if the comparator’s contract has a term that is not included in A’s contract, the equality clause will deem that as included.
Failure to comply with the clause: breach of contract.
There are 3 different routes to a successful equal pay claim in accordance to Section 65 Equality Act;
a. Like work
b. Work rated as equivalent
c. Work of equal value
What is ‘Like Work’
“like work” means the same work. This is where there are no differences of ‘practical importance’ between the work.
When comparing one person’s work with another, it is necessary to have regard to the frequency with which differences between their work occur in practice and the nature and extent of the differences. (S65(3). CASE: Capper Pass V Lawton
If there are differences between the work done, the ET should enquire whether it is reasonable that these are reflected in the terms and conditions of the employment. Examples include: “man more flexible” “heavier work” “men under more pressure”
The test is however, all or nothing; that is if the ET feels that there are significant differences, however small, these can be used to justify an enormous difference in wages.
The following differences which may be important:
Different responsibilities Eaton v Nuttall
Different duties: Electrolux v Hutchinson
Different Hours National Coal Board v Sherwin
What is “Work rated as equivalent”
Work rated as equivalent occurs where employers have voluntarily undertaken a Job Evaluation Study which gives equal value to the woman’s and man’s jobs in ‘terms of demands made by reference to effort, skill and decision-making’ – Section 80(5).
A Job Evaluation study is a method of comparing different job roles which is then used to determine pay scales.
CASE: Bromley v Quick – It was held that such schemes must be analytical; that is; they must analyze the jobs in terms of demands made under various headings (effort, skill, decision etc)
To qualify as “work rated as equivalent” the work must have been given equal value under a properly conducted job evaluation study. The job evaluation study must be thorough and capable of completely impartial application.
It is suspected that the evaluation is unconsciously biased, the scheme itself may be deemed discriminatory. The burden of proof is on the employer to show that the pay is not discriminatory.
CASE: Cadman V Health – a woman earned less than men in the same grade because the men had been employed for longer. As a general rule, it is appropriate to use length of service as a criterion when deciding the level of pay for a particular job. It is legitimate to reward a worker for gaining the experience that enables him or her to perform the job better.
What is work of ‘equal value’
A woman can claim equal pay with a man if she can show that her work is of equal value to him in terms of the demands made on her.
This means that the jobs done by a woman and her comparator are different but can be regarded as being of equal worth, taking into account the nature of the work, the training or skills necessary to do the job, the conditions of work, and the decision-making that is part of the role.
A woman cannot claim work of “equal value” if she is employed on “like work” or “work rated as equivalent”.
If neither of these apply, she can claim work of “equal value” if she can show that her work is equal to a male comparator’s work in the terms of the demands made on her by reference to factors such as effort, skill and decision making.
Defences by Employer
Since 1996, an ET has been able to decide the cases without reference to an expert, although in may cases an expert is still used. The expert will prepare report after hearing representations from both sides.
Even when a woman is able to show that she does light work, work rated as equivalent, or work of equal value, the employer may be able to resist the claim if it as able to show that the difference in terms is due to a material factor which is relevant and significant does not directly or indirectly discriminate against the worker because of her sex.
Section 69(1) Equality Act 2010 relates to the defence of material factor
Glasgow City Council v Marshall, Even if the material factor indirectly discriminates against the worker because of her sex, the employer may be able to justify it on the basis that:
- it is a proportionate means of achieving a legitimate aim and;
- Indirect discrimination arises where a pay system, policy or arrangement has a disproportionate adverse impact on a woman when compared to their male comparator.
There can be no justification if there is direct discrimination.
In most cases, the employer does not need to show that it has a “good” reason - simply that it is genuine, material, significant and relevant to the job in question.
Remedies
Equal pay claims must be bought within 6 months in Employment Tribunals and six years in the civil courts.
A woman can claim up to six years’ worth of compensation, going back from the date when her claim was issued.
Equal Pay Audit
An equal pay audit involves comparing the work, pay and benefits of men and women in the workplace, identifying any pay gaps and developing explanations for them.
An employer who loses a claim relating to equal pay that was brought after 1 October 2014 will be required to carry out an equal pay audit, unless a specific exception applies.
This process must include identifying and explaining differences in pay and formulating a plan to prevent equal pay breaches continuing or occurring. The audit also has to be published on the employer’s website, meaning the employer is likely to face further claims if identified differences in pay are not adequately dealt with.
One exception to this general requirement is where an employer has already carried out an audit satisfying certain conditions in the three years prior to the tribunal’s judgment. There are potentially a number of advantages to carrying out a voluntary audit—it does not have to be published and, if carried out properly, it can also be used to defend any future claim.
However, if an employer fails to deal with any differences discovered, the results of a voluntary audit could instead be used to support future equal pay claims, so an employer would have to be prepared to act on what they discover before taking this step.
