Empowering Employment Rights is a content collaboration between The Modern Career Coach and Emily Chalkey, Associate Solicitor.
Through the Modern Career Coach platform, Emily will be providing up to date and researched insights and advice on employment law, sex discrimination, the gender pay gap and gender imbalance. Our goal is to raise awareness of these subjects and to empower individuals affected by discrimination by educating them.

Equal Pay by Emily Chalkey

In theory, as a matter of law, women and men in the UK should receive equal pay for doing equal work. Despite the fact the Equal Pay Act was passed in 1970, the recent gender pay gap statistics and cases suggest that this remains a prevalent issue for female employees today. This is quite shocking given we are now in the 21st century.  

How does the equal pay legislation seek to protect women?

The law seeks to achieve equal pay by automatically incorporating a ‘sex equality clause’ into every woman’s employment contract. If a woman can establish that she is doing equal work to a comparable male, her pay is to be modified so that it is no less favourable than her comparable male colleague. 

In order to establish an equal pay claim, the following ingredients must apply:

  1. the female employee is receiving less pay than a male colleague who either works, or has previously worked, at the same place of work (referred to as the ‘comparator’);
  2. she is doing ‘equal work’ as the comparator; and
  3. her employer is unable to show that there is a material reason (see below) for the difference which causes the pay disparity and does not discriminate on the basis of her sex. 

What is covered by the term ‘pay’?

The equal pay provisions do not just apply to salary. They apply to all contractual terms, including, by way of example, contractual bonuses, holiday pay and occupational pension benefits. Note, a discretionary bonus is not included as it is not contractual. For unequal discretionary bonus claims (which is often the most lucrative part of employee’s pay, particularly for those working in financial services), a woman would need to bring a direct sex discrimination claim (which can be brought alongside an equal pay claim).  

What counts as equal work?

A woman is doing equal work to a male comparator if she is employed to do either:

  1. Like work:  work that is the same or broadly similar, provided that any differences are not of practical importance. 
  2. Work rated as equivalent: where the work is different to the comparator but is rated as of equal value under a job evaluation scheme. A job evaluation is a systematic way of assessing the relative value of different jobs between a women and her male comparators. 
  3. Work of equal value: where the work is different to the comparator but of equal value by reference to factors such as effort, skill and decision making (for example in the Asda supermarket equal pay case it was determined that female check out staff were doing work of equal value to males in the distribution depo).

It is up to the female employee to choose who her comparators are (it is not for the employer to stipulate), which can be difficult in businesses which have opaque structures.

Can an employer defend unequal pay?

An employer can defend an unequal pay claim on the basis that the variation is due to a material factor (known as the material factor defence) which is not directly or indirectly discriminatory. In order for the defence to be successful, the employer must prove that:

  1. the factor is significant and relevant;
  2. the factor is the real and genuine reason for the pay difference;
  3. the factor caused the disparity in pay; and 
  4. it does not involve any sex discrimination. 

Examples of material factors that may successfully defend the claim include geographical differences, unsocial hours, length of service, past performance and seniority. 

Remedy 

The main remedy a female who wins her equal pay claim will be seeking is compensation (a maximum of six years back pay), and if she still remains employed equal pay going forward.

Cases in the spotlight

Samira Ahmed v the BBC

One of the most recent high profile equal pay cases was brought by Samira Ahmed against her employer, the BBC. 

Ms Ahmed had been paid £440 for each episode of Newswatch that she presented. She discovered that her male colleague, presenter Jeremy Vine, was paid £3,000 per episode of the BBC’s Points of View. Ms Ahmed brought a claim for equal pay, arguing that her work was of equal value to Mr Vine and she should, therefore, be contracted on terms no less favourable than his. 

The Employment Tribunal considered whether the presenters’ work was the same or broadly similar to each other. They noted that both programmes were pre-recorded, fifteen minutes long, presenter lead and discussed viewer’s opinions. The tribunal acknowledged that the tone of each programme was different, with Points of View being an entertainment programme and Newswatch a news programme. Nonetheless, they found that the work Ms Ahmed did was the same or, if not the same, very similar to that of Mr Vine. They also considered the work to be of equal value to the BBC. 

The BBC sought to defend the claim by arguing that the pay disparity was a result of the profile of the presenters, the market pay rate market pressures. In addition to the above, they argued that the presenter of Points of View had the additional requirement of having “a glint in the eye” and being cheeky. The tribunal rejected all of the BBC’s arguments and held that the material factor defence did not apply. Ms Ahmed could now be awarded up to £700,000 in compensation. 

Stacey Macken v BNP Paribas

City banker, Stacey Macken, similarly brought a claim for unequal pay against her employer, the French bank BNP Paribas. 

Ms Macken joined the company in 2012 on an annual salary of £120,000. During her employment, she discovered that a male colleague who was hired under the same job title as her was earning £160,000 per annum. In addition to the wage disparity, the male co-worker’s bonus over a five year period was seven times more than the combined bonus offered to Ms Macken. She subsequently raised an unequal pay claim against her employer (as well as other sex discrimination claims), on the basis that she was paid less than the male colleague who was employed in the same job and carrying out the same role as her. 

The employment tribunal found in her favour and will reconvene in the near future to determine the amount of compensation to be awarded. 

Final comments

In the current climate of gender discrimination and the focus on transparent gender pay gap reporting, we can expect the number of unequal pay claims to rise over the next decade.

Contact

If you require further information or advice on the contents of this article, please contact Emily Chalkley by email on Emily.Chalkley@crsblaw.com or on 01483 252574.

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