Spotlight on Equal Pay: GO COMPARE!

Published: 26th July 2010

From a crinkly moustachioed opera singer with trousers at half mast to a strange meerkat with a bizarre accent, television is presently awash with adverts attempting to persuade you to compare items on various websites.

Comparison has always been at the heart of discrimination law. There are exceptions but predominantly a person with what will now be termed a protected characteristic under the new Equality Act must compare their less favourable treatment with a person who does not have that protected characteristic.

Recent Equal Pay cases have highlighted just how difficult it can be in naming the correct comparator and defending claims on the basis of the named comparator.

"Shall I compare thee ....."

Who can be a comparator? A comparator in an equal pay claim:

• Must be the opposite gender to the claimant;
• Can be a current or previous employee (including a predecessor in the actual role of the claimant);
• Must be (or have been) working in the same employment;
• Must be actual, not hypothetical (which differs from the Sex Discrimination Act and other discrimination legislation which allows hypothetical comparisons to be made).

"In the same employment"

The particular criteria for a comparator that they must be "in the same employment" has been the subject of countless hours of litigation and was raised again in the very recent case of White v Burton's Foods Limited. For the Equal Pay Act men and women are in the same employment when they are employed by the same employer (or an associated employer) either at the same establishment or different establishments that have common terms of employment. Mrs White was employed by Burton's as a Production Planning Manager at their Blackpool site. She brought an equal pay claim comparing herself to Production Planning Managers from other sites. These other sites had come under the common ownership of Burton's but no steps had been taken to harmonise terms and conditions save for the introduction of a standardised appraisal system. The claimant argued before the Employment Appeal Tribunal (EAT) that the employment of her comparators was broadly similar and therefore satisfied the test in the Equal Pay Act. The EAT did not agree and held the terms of the comparators were not broadly similar because they were different in respect of holiday pay, notice pay provisions, pay structure, discipline and grievance procedure, collective bargaining and there was no over arching company handbook. In addition pay at each site was fixed through local collective agreements or through their own internally assessed appraisal outcome.

"I'm a lady......"

When the Equal Pay Act was introduced in the 1970's the main motive was to introduce legislation to bring the pay of women in line with men who did comparable work. In fact the Act itself is written from a woman's perspective. Most of the equal pay claims brought since have been by women using male comparators but it should not be forgotten that men can bring claims under the Act as well. In the case of Hartlepool Borough Council v Llewellyn the EAT held that a man may bring a "piggyback claim" using a woman who has brought a successful equal pay claim as his comparator. The facts of the case centred on multiple claims brought in the North East, predominantly by women. A small number of men who worked alongside those women also brought claims on the basis that if the women succeeded, the men were entitled to equivalent pay using the successful women as comparators. The EAT held that the difference in pay between a successful female claimant and her male colleague doing comparable work was not unrelated to sex where the reason for the difference was that she had succeeded in her equal pay claim. It was not sustainable for the employer to argue that, because of their gender, the men could not bring claims. The EAT held that on policy grounds, a case where men and women do the same work but receive different rates of pay is just the kind of situation which the Equal Pay Act was intended to prevent.

"Back to the future?"

In Walton Centre for Neurology & Neuro Surgery NHS Trust v Bewley the EAT held that a claimant cannot use a successor as a comparator. The female claimant wanted to compare herself to male comparators for a period during which she was employed by the Trust but before her male comparators were recruited. The EAT held that using a successor comparator required consideration of what would have happened (as opposed to what did happen) in the past. The claimant argued the use of a predecessor involved an element of hypothesis in that it leaves open the question "what would have happened had the predecessor continued?" The EAT held it was legitimate to infer the comparator who was a predecessor would have continued to receive at least the same pay that he had received while in employment. Therefore a concrete appraisal could be made using a predecessor.

What this means for Employers

For employment law and HR equal pay is a complex minefield of issues and naming the correct actual comparator(s) can be very difficult as the above, which is only a brief look at some of the more recent issues relating to comparators, demonstrates.

There are many occasions where individuals completely omit naming a comparator in an equal pay complaint. If you receive an equal pay complaint, whether informally, by a grievance or possibly a claim, it is worth taking advice on the comparator issue as this may undermine any equal pay complaint received.

If this raises any issues for your organisation please speak to your usual contact in the Mace & Jones Employment and HR team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.