Equal Pay: new legislation and caselaw
26 January 2015
Amanda Jones
Today’s session
Overview Determining the
comparator Challenging JES Employer’s defence Equal Pay Audits Case law throughout
Barbara Castle – 9/2/1970
‒ “There can be no doubt that this afternoon we are witnessing another historic advance in the struggle against discrimination in our society…”
‒ Speech on the Second Reading of the Equal Pay Act, House of Commons, 9 February 1970
Where are we now: The Statistics
Global Gender Gap – UK drops from 18th in 2013 to 26th in 2014
Annual Survey of Hours and Earnings, November 2014 (mean figures used)
Pay gap 11.5% (Men FT vs. Women FT) Average weekly earnings £95.60 less Gap varies across regions and sectors
Determining the Comparator
‒ North v Dumfries and Galloway Council 2013‒ Common terms and conditions = broadly
similar ‒ “Real possibility” consideration not required‒ Scope for comparison– Glasgow City Council
v UNISON Claimants [2014] – ALEO employees can compare with direct Council employees
Challenging a Job Evaluation Scheme‒ No defence if there are “reasonable grounds
for suspecting” that the system was discriminatory or “otherwise unreliable”
‒ Burden is on the claimant (Hartley v Northumbria Healthcare NHS Foundation Trust )
‒ McDonald v Glasgow City Council EAT heard appeal in December 2014
JES: Pay Protection
‒ Perpetuating discrimination vs. cushioning the blow
‒ Express endorsement in 2010 Act of the legitimacy of pay protection
‒ McDonald and ors v Glasgow City Council ET decision 2013
Pay Protection – legitimate aim
‒ Audit Commission v Haq (2013)‒ Aim of projecting employees caught in a
restructure was legitimate ‒ Objective was based on fairness and retention
of valuable staff ‒ Do the statistics show a disparate impact?‒ No need to identify a PCP
Employers defence since 2010
‒ Material factor defence (“genuine” removed)‒ Kenny and ors v Minister for Justice, Equality and
Law Reform and ors 2013‒ Employer must objectively justify the difference in pay ‒ “Good industrial relations” cannot constitute the only
basis of objective justification ‒ Ministry of Justice v O’Brien 2013
Caselaw since 2010
‒ Calmac Ferries v Wallace (2013) -First EAT decision concerning 2010 Act
‒ Yates v Collins and Hobson plc. 2013 ET - Cautions against stereotyping
‒ Bradley v Royal Holloway and Bedford New College 2013
Private Sector – in the news “That's Asda price: Firm in equal pay row as more than 1,000 staff threaten legal action”
Equal Pay Audits (EPA)
‒ From 1 October 2014 ‒ Background: Modern Workplaces
Consultation ‒ “Think, Act, Report” failed to make significant
progress‒ Not a requirement to publish gender related
pay information
EPA: Name and Shame
‒ Unsuccessful employers (at ET) will be ordered to carry out and publish an EPA
‒ In an equal pay or sex discrimination claim‒ What will be required from an audit (ET has
wide discretion):– Relevant gender pay info including overtime and
bonus; Gender related pay differences and reasons why; plans to address issues identified
EPA: Exceptions
‒ New businesses (<12 months)‒ <10 employees ‒ Audit within last three years ‒ If Tribunal can find what remedial action is
required without an EPA‒ No suggestion of any other breaches ‒ Disadvantages outweigh benefits
EPA: Time and Penalties
‒ Employers will have at least 3 months from the date of the order
‒ Expected to allow up to one year for large companies with complex pay structures
‒ Failure to comply >£5000 fine payable to SoS‒ Ne deadline then given, further >£5000 fine if
continues to fail to comply ‒ No limit on number of penalties
EPA: Impact and Risks
‒ Low risk? ‒ Reducing number of ET claims ‒ Few equal pay claims lead to determination
by the ET ‒ Consider a voluntary audit?‒ Public sector should be carrying out audits as
part of PSED
Contact
Amanda JonesPartner0330 222 [email protected]