Individual Employment Rights Equal Pay

Introduction The legal requirement of ensuring equality b/n men and women’s terms of employment can be found in: Equal Pay Act (EPA)1970; amended by the SDA 1975, amended by EP (Amendment) Regulations 1983 and the Sex Discrimination Act 1986; Art 141 of the EC Treaty; EC Directive 75/117 ( the Equal Pay Directive)

European Community Law The continued impact of EC law in the area of equality cannot be underestimated; Art 141 has direct effect and, therefore, domestic law must be applied and interpreted in the light of the Article; Art 141 requires each MS to ensure that the principle of equal pay, for both male and female workers, for equal work or work of equal value, is applied; Art 141 is enforceable by an individual. It is supplemented by the Equal Pay Directive;

Equal Pay Act (EPA) 1970 Incorporates an equality clause into all contracts of employment – s 1 (1); Any term in the contract of employment which is less favourable to the woman (or man) as compared with a similar clause in a man’s contract (or vice versa) will be deemed to be no less favourable;

Claiming equality under EPA 1970 The applicant must show that he or she is employed under a contract of service or contract for services where there is a requirement for them personally to do the work (s 1 (6)); The applicant must be in the same employment as her comparator, that is she should be employed by the same employer at the same establishment, or by the same employer or an associated employer at an establishment where common terms and conditions are observed (s 1 (6);

Comparator The applicant must select a comparator of the opposite sex (not hypothetical comparator); The choice of comparator is a decision for the applicant; The applicant may apply for an order of discovery in order to select the most appropriate comparator (Leverton v Clwyd CC (1989); Comparison with a successor is permitted (Diocese of Hallam Trustees v Connaughton (1996)

Grounds for claim Equality can be claimed on one of the following grounds: Like work; Work rated equivalent; Work of equal value;

Like work (s 1(2)(a) of the EPA 1970) ‘Like work’ is defined by s 1(4) of the EPA 1970 as either the same work or work of a broadly similar nature, where the differences (if any, how big the differences are and how often they occur in practice)) b/n the applicant’ and comparator’ jobs are not of practical importance in relation to the terms and conditions of the contract (the degree of responsibility involved in the job should be considered). Case law Capper Pass Ltd v Lawton (1977)

Mrs Lawton was a cook employed in a directors’ dining room, where she provided lunches for up to 20 directors each day. She claimed equal pay on the basis of ‘like work’ with two male assistant chefs in the works canteen, who provided some 350 meals per day. A two stage test should be applied: Is the work the same or, if not, is it of a broadly similar nature?- EAT applied a broad approach If the work is broadly similar, are the differences of practical importance? – Mrs Lawton was employed on ‘like work’

Work rated equivalent (s 1(2)(b) of the EPA 1970) Where a woman is employed on work in a job rated as equivalent with the job of a man who is, or was, in the same employment and the claim is based on a job evaluation study made by the employer set out in s 1(5) of the EPA; To establish a successful claim the woman must: - Specify the differences in the contracts; - Identify the employee/comparator, by the same employer or an associated one; - Show that she carries out like work to that of the man; or - Show that her work and that of the male employee received the same rating under a job evaluation scheme;

Equal value (s 1(2)(c) of the EPA 1970) The legislation allows a wan to claim that her job is of equal value to that of a man though their jobs are not the same or broadly similar and have not been evaluated under a valid study. The two jobs will be evaluated under such headings as effort, skill and decision- making; Case law: Commission v UK (1982), Hayward v Cammell Laird Shipbuilders Ltd. (1988)Pickstone v Freemans plc (1988)

Equal Value Procedure It is complex; The right of the complainant to issue a questionnaire to potential respondents; The employer may introduce the genuine material factor defence s 1(3) of the EPA 1970 – Lord Keith considers as ‘significant and relevant’, personal qualities by way of skill, experience or training which the individual brings to the job;

Remedies Claim to be made either whilst still in employment or within six months of leaving the employment; If the applicant succeeds in her claim, she may recover arrears of pay for a period of up to two years period;