Sexual discrimination - The Equal Pay Act 1970
The Equal Pay Act 1970 (Hereafter the “EPA”) provides employed individuals with the right to receive the same contractual pay and other benefits as a person of the opposite gender working in the same employment. These provisions give women the right to equality in the terms of her contract of employment where she is employed:
• to perform like work to that of a man - i.e., work of the same or a broadly
similar nature to the man’s (see section 1(2)(a) and (4) EPA);
• to perform work rated as equivalent to that of a man - i.e., in a job which a job evaluation study of part or all of the employer’s workforce has shown to
be of equal value to that of the man’s (see section 1(2)(b) and (5) EPA); or
• to perform work of equal value to that of a man - i.e., in a job which is equal in value to the man’s terms of the demands made on her under such headings as effort, skill and decision-making (see section 1(2)(c) EPA).
It should be noted that employers are not obliged to offer the same pay and benefits if they can prove that the difference in pay or benefits has resulted because of a reason other than one related to the gender of the employees. As in other contexts in the field of worker protection and social policy the influence of European law is profound in regards to equal pay. “1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
Equal pay without discrimination based on sex means:
(b) that pay for work at time rates shall be the same for the same job.”
Severance pay on retirement: Kowalski v Freie und Hansestadt Hamburg (1992)
Redundancy pay: Hammersmith and Queen Charlotte’s Special Health Authority v Cato [1987]
Paid leave: Arbeiterwohlfahrt der Stadtt Berlin v Botel [1992].
This covers circumstances in which the pay differential is caused by a practice or condition which applies to both men and women but which benefits a significantly greater proportion of one sex than the other. If it is not reasonably justifiable, regardless of sex, to apply the said practice or condition then the EPA will apply. • if a term is contained in a man’s contract but not in a woman’s contract it will be deemed that it is incorporated in her contract - for example, if the man’s contract entitles him to an expense allowance but the woman’s contract is silent on the matter, the woman will also be held contractually entitled to the same allowance;
It is submitted therefore, that the correct approach is to compare a term about basic pay in a woman’s contract with the same term in a man’s contract, but that it would be incorrect to compare the entire remuneration packages in the two contracts. A woman claimant must compare herself with a man, who must be under the employ of her employer or what is referred to as an associated employer. The relevant comparison must normally be made with a man employed at the same establishment as the claimant woman. That said, a comparison may be made with a man at another establishment if both places are owned by the same employer (or an associated employer) and common terms and conditions of employment are applicable between the two establishments. Section 1(4) of the EPA provides that a woman will be considered to be employed on like work to that of a man if she is performing the same work as he is, or work of a broadly similar nature. In deciding whether a woman is employed on like work or not, consideration must therefore be lent to the nature of any differences between her work and the work of a man, how significant those differences are and how often they occur in practice (Section 1(4)). Where a woman wishes to claim equal pay on the grounds that such a job evaluation study rated her job as equivalent to that of a man, the EPA requires, by section 1(5), that the study should have been undertaken to evaluate the demands made on a worker under various headings (eg, skill, effort, decision-making), the jobs to be done by all or any of the employees in a company or group of companies. Generally speaking, if a job evaluation study indicates that a woman’s job is not the equivalent of a comparator man’s job she will be unable to found her claim upon it. Given that this weighting could potentially benefit men disproportionately it may discriminate indirectly against women and would therefore be pregnable to challenge. The tribunal therefore concluded that no valid job evaluation had been carried out and that Diageo could not use their job evaluation exercise to block Ms Thomson’s equal pay claim. It is submitted that all too often the work that female’s undertake is systematically undervalued in comparison to work carried out by their male co-workers. One way in which employer’s and employees can be reassured that the company pay system does not undervalue women’s work, is by undertaking a job evaluation exercise. Generally speaking, this system is interpreted in the interests of the female claimant and moreover, even if a job evaluation study has rated a woman’s job as unequal to a man’s, it may still be possible for her to pursue her claim under the ‘like work’ provisions where there are strong and substantial similarities between her job and the man’s job: see for comment O’Brien v Sim-Chem Ltd [1982].
European Community law additionally confers equal pay rights where members of the opposite sex carry out work to which an equal value is attributed. It is judged that this represented a significant advance for the interests of women in the workplace, given that along with the possibility of making and equal pay claim based on “like work” or “work-rated as equivalent” it thereafter became possible to found a claim based on “work of equal value”.
Section 1(3) of the EPA provides as follows:
“1(3) An equality clause shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor -
1(3)(a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman’s case and the man’s; and
It was argued that the pay differential was justified due to a genuine material difference not concerning sex because the employers would have been unable to establish the prostethist service within a reasonable time without offering a rate of pay to attract workers from the private sector. It should also be noted that even if an employer can demonstrate that a difference in terms of employment between a woman and a man is caused by a material factor other than the difference of gender, this will fail to create a defence if it concerns the application of a criterion which a significantly lower proportion of women than men can satisfy. The EOC Code of Practice on Equal Pay provides practical advice to employers and details employers’ duties with regards to equal pay. The Code of Practice stresses that, in practice, discrimination in pay now occurs primarily because women and men tend to undertake different kinds of jobs and to have different working patterns. Enforcing Equal Pay Act rights
Women with a pay equality grievance must bring their claim before the Employment Tribunal. An equal pay claim can be brought at any time during the course of employment or up to six months after leaving employment. If a claim proves successful, the complainant is entitled to:
• Back-pay representing the difference in pay (subject to a certain limit) with interest.
Where an employer has endeavoured to conceal the existence of discriminatory pay practices a special rule applies which means that back-pay can be claimed back to the date when the difference in pay first started.
The Sex Discrimination Act 1975
The Sex Discrimination Act 1975 (hereafter the “SDA”) prohibits discrimination on grounds of sex or marital status. As a consequence it does not apply to “benefits consisting of the payment of money when the provision of those benefits is regulated by the woman’s contract of employment”: see section 6(6) SDA. These terms are covered by the EPA. Accordingly, whereas the EPA deals with discriminatory contractual provisions, the SDA deals with non contractual discrimination on grounds of sex and marital status. The SDA applies to both direct and indirect forms of discrimination in this context. Prior to the entering into force of the Employment Equality (Sex Discrimination) Regulations 2005 , section 1 of the SDA provided as follows:
“1(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-
(2) If a person treats or would treat a man differently according to the man’s marital status, his treatment of a woman is for the purposes of subsection (1)(a) to be compared to his treatment of a man having the like marital status.”
The Employment Equality (Sex Discrimination) Regulations 2005 which is applicable both to employment and vocational training, substitutes a new definition of indirect discrimination in section 1 and the amended version is as follows:
“(b) he applies to her a provision, criterion or practice which he applies or would apply equally to a man, but
“A woman’s hair is her crowning glory, so it is said. The women at an ordinance factory in Wales are no exception. It should be emphasised that direct discrimination can only be found if it is possible to make a direct comparison between a woman and a man. Whether or not this policy works to the benefit of women seeking employment is of course another matter. Section 3 establishes the prohibition of discrimination based on marital status. By virtue of the Employment Equality (Sex Discrimination) Regulations 2005 this law has been amended. Alleged discriminatory acts which occur after employment has commenced are covered by section 6(2) of the SDA. This section provides that it is unlawful for an employer to discriminate against a woman:
There are a vast number of ways in which a detriment can be visited on women at work and both the law and the courts have proved relatively flexible in enforcing the regime for the benefit of women. Perhaps a woman’s very first contact with the job market will take place when she views job advertisements. This clearly reduces the risk that women will be deterred from making applications for jobs by the use of male-specific labels in job advertisements. Under section 82 the term includes:
Tags: contract of employment, equal pay act 1970, freie und hansestadt hamburg, health authority, job evaluation, redundancy pay
