Monthly Legal Q&A

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I understand claims are being made against Tesco in relation to equal pay, but what is an Equal Pay claim?

The potential equal pay claims against Tesco, focuses on employees working in male-dominated distribution centres being paid more than the employees working in the largely female-staffed Tesco stores, however the issues and considerations concerning Equal Pay claims can just as easily apply to other employers, including those in the public sector.  We have provided a ‘Snap-Shot’ for you of what constitutes an equal pay claim

The Equality Act 2010 provides for equality to be achieved between men and women in relation to pay and other terms of employment.

It does this by providing for what we call a ‘sex equality clause’ which is implied into every individual’s contract of employment and gives an individual the right to equal pay for equal work, when compared to a comparator of the opposite sex.

So, for example, if a woman is employed to undertake work of equal value to that of a man but is paid at a lower hourly rate, her contract is treated as modified so that she is entitled to be paid at the higher rate.

The sex equality clause cannot, however, be relied on to put an individual in a more favourable position, so, for example, if a qualified woman is paid at the same rate as a male trainee, she cannot rely on the sex equality clause to be paid any extra payment. 

The principle is of equal pay for equal work, not better pay for better work.

What is Equal Work?

An individual’s work is equal to that of a comparator if:

-          The individual is employed on like work, that is work which is the same or broadly similar and where any differences are of no practical importance, or

-          The individual is employed on work rated as equivalent, to satisfy this element a valid job evaluation would be carried out, or

-          The individual is employed on work of equal value, this can be assessed by consideration of the parties evidence or by appointment of an independent expert

So, 2 jobs which appear to be very different may still be of equal value measured in terms of the demands made on the individual by reference to factors such as effort, skill and decision-making.

Who is a Comparator?

A comparator has to be a real person, although they do not have to work at the same establishment; if 2 people work at different establishments but share the same employer and common terms and conditions of employment apply, each may be a comparator for the other.

Defences and Exceptions

So, as a general rule if the work of an individual and a comparator of the opposite sex is equal, but their terms of employment are not, the sex equality clause takes effect, however a sex equality clause has no effect if the employer shows that the difference in terms is because of a material factor.  Depending on the individual circumstances of the case such factors can include:

-          Seniority or experience                     - Qualification or training

-          Greater responsibility                       - Special or additional duties

 

Compensation

Ordinarily the Employment Tribunal will award compensation to represent the difference between the equal pay that should have been paid and what was in fact paid to the individual, which can be for up to a period of 6 years.

 

If you require any further advice or guidance regarding such matters please do not hesitate to contact the Employment, Education and Information team at Invicta Law via matthew.waterworth@invicta.law

This is not legal advice; it is intended to provide information of general interest about current legal issues.