Pay Inequalities Flashcards
Gender Pay Gap
Currently stands at 19% between men and women. GPG perpetuates inequality because it means that it is often the logical choice for women to take time out of the labour market than men when they have children, since on average they are more likely to be earning less money.
Pay Inequality Framework
1) Does the issue relate to pay?
2) Is the work of equal value?
3) Are they doing equal work?
4) Defence of material fact - is there an unrelated material factor that explains the difference?
Barber
Definition of ‘pay’ under EU law is very broad. It essentially includes any form of remuneration which the worker receives from the employer. Compensation granted to a worker connected to redundancy constituted pay in this case.
s 65(1) EqA 2010
A’s work is equal to that of B if it is -
(a) Like B’s work,
(b) Rated as equivalent to B’s work, or
(c) Of equal value to B’s work.
s 65(2) EqA 2010
A’s work is like B’s work if A’s work and B’s work are in the same or broadly similar circumstances, and any differences that exist are not of practical importance in relation to their work.
Shields v E Coomes Holdings
Lord Denning explained that differences in duties under contractual obligations is not a relevant difference unless it results in an actual difference in the work done in practice. Relevant differences in value of work are not merely determined by the notional paper obligations of the parties.
British Coal Corporation v Smith
Lord Slynn stated that the terms and conditions of A and B do not need to be identical for them to be in broadly similar circumstances. On a broad basis, they just need to be substantially comparable - need to be sufficiently similar for a comparison to be made.
Rummler
CJEU held that it is an objective assessment as to whether or not work is of equal value. Job classification systems used to determine remuneration must be based on criteria which do not differ according to whether the work is carried out by a man or woman.
For the whole job classification system to be non-discriminatory, it must be established in a way that has regard for other aptitudes of women and include jobs to which equal value is attributed.
Danfoss
CJEU held that if an employer is using a non-transparent pay system, and therefore cannot explain why there is a pay gap between men and women, this will give rise to a presumption of pay discrimination.
s 64(1) EqA 2010
ss 66-70 EqA (sex equality) apply where A is employed on work that is equal to the work that a comparator of the opposite sex (B) does.
s 64(2) EqA 2010
The comparison between work done by A and B (comparator of the opposite sex) is not limited to work that they do contemporaneously - so A can make comparisons with work done by previous male workers to demonstrate pay discrimination on grounds of sex.
Macarthys Ltd v Smith
Comparator can be the previous occupier of the post in question. Lord Denning MR made it clear that the man and woman need not be employed at the same time for the pay comparison to be made.
British Coal Corporation v Smith
Comparator can be an individual working outside of the establishment that A is working in. Therefore, the comparison could be made with employees working across different sites under the same employer.
North Dumphries and Galloway Council
Lady Hale said that where some very different jobs are not carried out in the same workplace because of the nature of those jobs (office v manufacturing e.g.), they can still be rated as having equal value.
Lawrence v Regent Office Care
Single source of employment is required for comparisons.
