News
Case law: The Equal Pay Act and linked claims
02 Jul 2009
McAvoy and ors v South Tyneside Borough Council allowed a male employee to succeed with an equal pay claim where his comparator was an equally underpaid female colleague claiming equal pay compared with a male colleague paid more than both of them. Given the Employment Tribunal’s (ET) willingness to allow McAvoy the right to claim equal pay where he relied on a male comparator, is it time to revisit the gender requirement for comparators in the Equal Pay Act 1970 (EPA)?
The law
It is accepted that women (or men) doing like work, work of equal value or work rated as equivalent to men (or women) can demand equal pay by virtue of the equality clause implied into employment contracts by the EPA by uplifting a claimants’ remuneration to the rate of their comparator. Compensation can be for equal pay arrears for up to six years before the date of the claim.
A claimant must choose an actual comparator of the opposite gender carrying out the relevant work not a hypothetical one. The comparator need not work for the same employer but can be an employee of an associated employer provided there is a single body determining pay (Dumfries and Galloway Council v Mrs E North and others) and does not need to be employed at the same time as the claimant but can be someone who previously held the position.
Relevant comparators
The ET decision in McAvoy further enhances the interpretation of who is a relevant comparator. Uniquely it involved a male claimant comparing himself with a female claimant bringing an equal pay claim. She compared herself with a higher paid male employee.
The Employment Appeals Tribunal (EAT) endorsed the Tribunal’s decision and compensated the male claimant for arrears of up to six years from the date on which the female claimant commenced her claim (rather than six years from the start of his own claim). This decision is, in our view, correct.
Potential problems
However, the result is a potentially detrimental one for the male claimant if he didn’t start his claim at the same time as the female claimant, because his compensation would be reduced by the period between the claims.
It is also problematic that his claim is dependent on her claim succeeding. If she reaches a compromise with the employer the compensation she receives will be hidden from the male colleague, who would only be able to rely on equal pay from the date on which his female colleague’s pay is uplifted.
If the female claimant withdraws, he is stranded without a comparator and cannot rely on the higher paid male comparator. A female claimant who only has a higher paid female comparator is equally disadvantaged. This in itself seems discriminatory on grounds of sex!
The male claimant would have to abandon the equal pay claim and resort to a grievance or argue breach of the implied term of trust and confidence, resign in reaction to the employer’s breach and claim for constructive unfair dismissal if he had over one year of service. Compensation is capped at £66,200 for actual (eg, part underpayment) and future loss of earnings.
EPA claims
The advantage of an EPA claim is that the claimant need not resign, is not reliant on length of service and compensation is not capped (save by reference to the maximum of six years back pay).
Male employees should not be more disadvantaged by the EPA’s requirement that a comparator must be of the opposite sex. However, in establishing a gender based criterion to bring an equal pay claim the EPA has established an equality clause that is reliant on gender discrimination to be effective.
Surely this goes against the purpose of the EPA which was to eliminate gender discrimination. Is it time for the EPA to dispose of the gender differential, so that all employees, irrespective of gender of a comparator, can rely on the implied equality clause?
Emma Bartlett is a partner in the employment team (emma.bartlett@speechlys.com) and Annabel Cole is a solicitor in the employment team (Annabel.Cole@speechlys.com)
Link: