Equal Pay

1. Equal Pay Dr Katarzyna Gromek-Broc York Law School

2. Equal Pay • Origin: Equal Pay Act 1970 • EqA 2010 • equal treatment for men and women - the equality clause: • EqA 2010 – s. 66(1) – inclusion of the ‘Equality Clause’.

3. Equal Pay • EqA 2010 – s. 66(2) – the specifics of the clause: • Any term less favourable than that in a male comparator’s employment contract modified so as not to be less favourable. • Any term conferring a benefit in a man’s contract which does not appear in a woman’s contract will be deemed to be included in the woman’s contract.

4. Equal Pay • men can claim equal pay also: • the woman and her comparator must be in the ‘same employment’

5. Equal Pay • Pay for the purpose of EqA 2010: salary, pensions, travel concessions, company car • The EqP implies in every contract of employment an “equality clause” • Use of the comparator

6. Equal Pay Comparator must be employed • on like work • Work rated as equivalent • Work of equal value Restriction to the same employment (case Alonby [2004] IRLR 224

7. Equal Pay • The Comparison to be Made: • EqA 2010 – s. 65 – ‘Equal Work’. Section 65(1) sets out the 3 possible tests: • EqA 2010 – s. 65(2) – ‘like work’. • EqA – s. 65(4) – ‘work rated as equivalent’. • EqA – s. 65(6) – ‘work of equal value’.

8. Equal Pay • Like work: • The woman can compare her pay with a man if they are engaged on ’like work’ for the same or an associated employer • like work: work of the same or similar nature

9. Equal Pay • CA Case Degnan v Redcar & Cleveland Borough Council [2005] • Female cleaners, supervisory assistants in school compared their work to gardeners, refuse workers, drivers. • CA: The women were not entitled to select the most advantageous comparator for each element.

10. Equal Pay • Work rated as equivalent • Jobs have been ranked equally by a job evaluation scheme • Job evaluation is concerned with assessing the value of different jobs and putting them in order of importance and worth. It is only the job which is measured, not the person doing it.

11. Equal Pay • Equal Value is defined as work which is, in terms of the demands made on the woman (for instance under headings such as effort, skill and decision making) is of equal value to that of a man in the same employment

12. Equal Pay • Equal pay for work of equal value: EqA 1– s. 65(6) – ‘work of equal value’ • Three ways for the employer to defeat a claim of equal pay for work of equal value: • no reasonable grounds for claiming equal value: • an existing JES as rated the jobs as unequal: • even if the jobs are of equal value, there is an objective justification for the pay difference:

13. Equal Pay • The material factor defence • EqA 2010 – s. 69 • An employer can defeat a claim to • equal pay for like work: • equal pay for work rated as equivalent: • equal pay for work of equal value: • if he can establish that the variation in pay is genuinely due to a material factor which is not the difference of sex: section

14. Three categories of potentially justifiable factors under s 1(3) • 1. The personal equation • Clay Cross (Quarry Service) Ltd v. Fletcher [1978} IRLR 361 CA • 2. Organisational factors • Rainey v. Greater Glasgow Health Board (1989) • ‘a difference which is connected with economic factors affecting the efficient carrying out on of the employer’s business or other activity may well be relevant’ • Bilka-Kaufhaus GmbH v. Weber von Hartz (1986) • Nimz [1991] IRLR 222 ECJ • 3. Labour market factors • Enderby v. Frenchay Health Authority (1993)

15. Equal Pay • 3. Labour market factors • Enderby v. Frenchay Health Authority (1993) • ‘the state of the labour employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified economic ground’ for a difference in pay • but ‘it is for the national court to determine, if necessary by applying the principle of proportionality, whether and to what extent the shortage of candidates for a job and the need to attract them by higher pay constitutes an objectively justified economic ground for the difference in pay between the jobs in question’

16. Some Problems: • Some problems with the present regime: • Lack of ‘equality duty’ (other than in public sector). • Failure to deliver pay equality. • Problem of needing the same employer? • Difficulties of dealing with indirect discrimination? • Too reliant on high cost/high pressure individual claims? • Insufficient collectivism? • Improvements under the Equality Act 2010? • S. 77 and information availability. • Clarification of some of the language? • S. 78 and the potential to order information on the ‘Gender Pay Gap’.