Equal PayEqual Pay

Dr Katarzyna Gromek-BrocDr Katarzyna Gromek-Broc

York Law SchoolYork Law School

Equal PayEqual Pay

Origin: Equal Pay Act 1970Origin: Equal Pay Act 1970 EqA 2010EqA 2010 equal treatment for men and women - the equal treatment for men and women - the

equality clause: equality clause: EqA 2010 – s. 66(1) – inclusion of the EqA 2010 – s. 66(1) – inclusion of the

‘Equality Clause’.‘Equality Clause’.   

Equal PayEqual Pay

EqA 2010 – s. 66(2) – the specifics of the EqA 2010 – s. 66(2) – the specifics of the clause:clause:

Any term less favourable than that in a Any term less favourable than that in a male comparator’s employment contract male comparator’s employment contract modified so as not to be less favourable.modified so as not to be less favourable.

Any term conferring a benefit in a man’s Any term conferring a benefit in a man’s contract which does not appear in a contract which does not appear in a woman’s contract will be deemed to be woman’s contract will be deemed to be included in the woman’s contract.included in the woman’s contract.

Equal PayEqual Pay

men can claim equal pay also: men can claim equal pay also: the woman and her comparator must be in the woman and her comparator must be in

the ‘same employment’ the ‘same employment’

Equal PayEqual Pay

Pay for the purpose of EqA 2010: Pay for the purpose of EqA 2010: salary, salary, pensions, travel concessions, company pensions, travel concessions, company carcar

The EqP implies in every contract of The EqP implies in every contract of employment an “equality clause”employment an “equality clause”

Use of the comparatorUse of the comparator

Equal PayEqual Pay

Comparator must be employed Comparator must be employed

on like workon like work Work rated as equivalentWork rated as equivalent Work of equal value Work of equal value

Restriction to the same employment (case Restriction to the same employment (case AlonbyAlonby [2004] IRLR 224 [2004] IRLR 224

Equal PayEqual Pay

The Comparison to be Made:The Comparison to be Made: EqA 2010 – s. 65 – ‘Equal Work’. Section EqA 2010 – s. 65 – ‘Equal Work’. Section

65(1) sets out the 3 possible tests:65(1) sets out the 3 possible tests:    EqA 2010 – s. 65(2) – ‘like work’.EqA 2010 – s. 65(2) – ‘like work’. EqA – s. 65(4) – ‘work rated as EqA – s. 65(4) – ‘work rated as

equivalent’.equivalent’. EqA – s. 65(6) – ‘work of equal value’.EqA – s. 65(6) – ‘work of equal value’.

Equal PayEqual Pay

Like work:Like work: The woman can compare her pay with a The woman can compare her pay with a

man if they are engaged on ’like work’ for man if they are engaged on ’like work’ for the same or an associated employerthe same or an associated employer

like work: work of the same or similar like work: work of the same or similar naturenature

Equal PayEqual Pay

CA Case CA Case Degnan v Redcar & Cleveland Degnan v Redcar & Cleveland Borough CouncilBorough Council [2005] [2005]

Female cleaners, supervisory assistants in Female cleaners, supervisory assistants in school compared their work to gardeners, school compared their work to gardeners, refuse workers, drivers.refuse workers, drivers.

CA: The women were not entitled to CA: The women were not entitled to select the most advantageous comparator select the most advantageous comparator for each element.for each element.

Equal PayEqual Pay

Work rated as equivalentWork rated as equivalent Jobs have been ranked equally by a job Jobs have been ranked equally by a job

evaluation schemeevaluation scheme Job evaluation is concerned with Job evaluation is concerned with

assessing the value of different jobs and assessing the value of different jobs and putting them in order of importance and putting them in order of importance and worth. It is only the job which is measured, worth. It is only the job which is measured, not the person doing it.not the person doing it.

Equal PayEqual Pay

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

Equal PayEqual Pay

Equal pay for work of equal value: Equal pay for work of equal value: EqA 1– s. EqA 1– s. 65(6) – ‘work of equal value’65(6) – ‘work of equal value’

Three ways for the employer to defeat a claim of Three ways for the employer to defeat a claim of equal pay for work of equal value:equal pay for work of equal value:

no reasonable grounds for claiming equal value: no reasonable grounds for claiming equal value: an existing JES as rated the jobs as unequal: an existing JES as rated the jobs as unequal: even if the jobs are of equal value, there is an even if the jobs are of equal value, there is an

objective justification for the pay difference: objective justification for the pay difference:

Equal PayEqual Pay

The material factor defenceThe material factor defence EqA 2010 – s. 69EqA 2010 – s. 69 An employer can defeat a claim toAn employer can defeat a claim to equal pay for like work: equal pay for like work: equal pay for work rated as equivalent: equal pay for work rated as equivalent: equal pay for work of equal value: equal pay for work of equal value: if he can establish that the variation in pay if he can establish that the variation in pay

is genuinely due to a material factor which is genuinely due to a material factor which is not the difference of sex:is not the difference of sex: section section

Three categories of potentially Three categories of potentially justifiable factors under s 1(3)justifiable factors under s 1(3)

1.1. The personal equationThe personal equation Clay Cross (Quarry Service) LtdClay Cross (Quarry Service) Ltd v. v. FletcherFletcher [1978} [1978}

IRLR 361 CAIRLR 361 CA

2.2. Organisational factorsOrganisational factors RaineyRainey v. v. Greater Glasgow Health BoardGreater Glasgow Health Board (1989) (1989) ‘‘a difference which is connected with economic a difference which is connected with economic

factors affecting the efficient carrying out on of the factors affecting the efficient carrying out on of the employer’s business or other activity may well be employer’s business or other activity may well be relevant’relevant’

Bilka-Kaufhaus GmbHBilka-Kaufhaus GmbH v. v. Weber von HartzWeber von Hartz (1986) (1986) NimzNimz [1991] IRLR 222 ECJ [1991] IRLR 222 ECJ

3.3. Labour market factorsLabour market factors EnderbyEnderby v. v. Frenchay Health AuthorityFrenchay Health Authority (1993) (1993)

Equal PayEqual Pay 3.3. Labour market factorsLabour market factors EnderbyEnderby v. v. Frenchay Health AuthorityFrenchay Health Authority (1993) (1993) ‘‘the state of the labour employment market, which may the state of the labour employment market, which may

lead an employer to increase the pay of a particular job lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an in order to attract candidates, may constitute an objectively justified economic ground’ for a difference in objectively justified economic ground’ for a difference in paypay

butbut ‘it is for the national court to determine, if necessary ‘it is for the national court to determine, if necessary by applying the principle of proportionality, whether and by applying the principle of proportionality, whether and to what extent the shortage of candidates for a job and to what extent the shortage of candidates for a job and the need to attract them by higher pay constitutes an the need to attract them by higher pay constitutes an objectively justified economic ground for the difference in objectively justified economic ground for the difference in pay between the jobs in question’ pay between the jobs in question’

Some Problems:Some Problems:• Some problems with the present regime:Some problems with the present regime:

▫ Lack of ‘equality duty’ (other than in public sector).Lack of ‘equality duty’ (other than in public sector).▫ Failure to deliver pay equality.Failure to deliver pay equality.▫ Problem of needing the same employer?Problem of needing the same employer?▫ Difficulties of dealing with indirect discrimination?Difficulties of dealing with indirect discrimination?▫ Too reliant on high cost/high pressure individual claims?Too reliant on high cost/high pressure individual claims?▫ Insufficient collectivism?Insufficient collectivism?

• Improvements under the Equality Act 2010?Improvements under the Equality Act 2010?▫ S. 77 and information availability.S. 77 and information availability.▫ Clarification of some of the language?Clarification of some of the language?▫ S. 78 and the potential to order information on the ‘Gender S. 78 and the potential to order information on the ‘Gender

Pay Gap’.Pay Gap’.