Equal pay claims have been much in the news lately with many councils facing the threat of legal action by trade unions on behalf of low-paid female workers not being paid the same rates as men performing similar jobs. The Equal Pay Act 1970 makes it unlawful for an employer to discriminate between men and women in terms of their pay and conditions where they are doing the same or similar work, work rated as equivalent or work of equal value.
If a woman’s employment contract does not specifically include an equality clause, it is automatically deemed to include one. If a woman brings a claim for breach of that equality clause, a comparison must be made between the terms of the woman’s own contract and the terms of some other person’s contract – ‘the comparator’. The comparator must be a male employee doing the same or similar work, work rated as equivalent or work of equal value. Choosing the right comparator is very important when bringing an equal pay claim.
Under Section 32 of the Employment Act 2002, before an employee can present an equal pay complaint to the Employment Tribunal (ET), they must first set out their grievance in writing for their employer in order to try to resolve the dispute under the statutory scheme.
The Employment Appeal Tribunal (EAT) has ruled (The Highland Council v GWU/Unison and Others) that the exercise of comparison is so fundamental to an equal pay complaint that there must be some specification of the comparator, at least by reference to job or job type, in the grievance document. It does not give the employer sufficient information merely to state that an equal pay claim is being made. Furthermore, the comparator used when making an equal pay claim to the ET must not be materially different from that used when the grievance was raised, otherwise the ET will have no jurisdiction to hear the claim. In this case there were variations between the comparators identified at stage 1 of the standard grievance procedure and those subsequently identified on the ET1 forms submitted. The EAT therefore held that the ET should carry out a qualitative assessment to see if the comparators included on the forms ET1 were materially different from the comparators identified in the grievances.
The EAT went on to advise what an employee should do in the event that they find a better comparator after having already raised a grievance. The action necessary will depend on how far the complaint has progressed. It may involve raising a new grievance, which could be dealt with in tandem with the original grievance. If Tribunal proceedings have already commenced, the claimant can seek permission to amend their existing claim. If permission is not granted, it is open to the claimant to start again by raising a fresh grievance. If the statutory grievance procedures fail to resolve the issue, a fresh claim can then be presented to the ET.
Pinder Reaux & Associates