Potential equal payday for many more employees?

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Posted in:HR and Employment|April 29, 2014 | Join the mailing list

In two current Employment Tribunal cases, we may have a sign of things to come in relation to sex discrimination and equal pay law, namely claims by large groups of women in the private sector similar to the successful public sector equal pay claims, and also
claims being brought by men who are paid less than women for work of equal value.  

The basic premise of equal pay is that men and women should have contractual terms no less favourable than those of members of the other gender who do equal work in the same employment. The Equal Pay Act 1970 first brought this concept into English law and
it is now covered by the Equality Act 2010 (there are complicated provisions about which piece of legislation to use depending on when the relevant events occurred).  The Equal Pay Act 1970 was enacted to address the issue of women being paid less than men
for work which was the same or of equal value to the men’s work.

“Equal work” can be like work, work rated as equivalent or work of equal value. “Like work” means the same or broadly similar work, where any differences are not of practical importance in relation to terms of employment.  “Work rated as equivalent” relates
to where there has been a job evaluation study giving an equal value to the comparator jobs in terms of the demands made on a worker (or would do so if the evaluation was done without setting different values for men and women on certain factors).  Work is
of “equal value” if it is neither like work nor work rated as equivalent, but is nevertheless equal work in terms of the demands made on the individual by reference to factors such as effort, skill and decision-making.

So far, employers in the private sector have not generally been the subject of largescale (and very high value) equal pay claims by groups of women, arguing that their work is of equal value to that done in roles performed mostly by men and which have historically
been more highly paid than the roles performed mostly by women.

However, Asda (the supermarket) is facing an Employment Tribunal claim by around 400 of its female employees who work in its stores and who allege that workers in Asda’s distribution centres, who are mostly men, do work of equal value to the female store-workers
and yet receive higher pay.  The case is expected to be heard in the Manchester Employment Tribunal in the next two months and could have implications for other large retailers who own their own distribution centres and directly employ the people who work
in them.  

Berg’s Kim Freeman-Smith says: “this case is definitely “one to watch”, not only for the outcome, but for the arguments that the parties make and the reasoning of the Tribunal, whatever the result is.  Like any case, the facts are going to be very important,
but a decision in favour of the claimants could result in many more claims like it and have a substantial impact on the private sector.  Job evaluation studies are common in the public sector, but private sector employers should also be aware of how their
organisation measures up to the requirements of the Equality Act 2010 in relation to equal pay and it is a good idea to have regular audits if they are to protect themselves from potentially damaging claims”.

In another case which shows how the area of sex discrimination and equal pay may be expanding, eighteen men who work for a welsh university recently brought complex sex discrimination and equal pay claims against their employer.  Put very simply, the male caretaker
and maintenance workers claimed that their jobs were lower paid than other roles on the same pay grade which were more likely to be done by women, including secretaries and office workers.  The claim related to historic pay, when the claimants were employed
by Swansea Metropolitan University before it merged with the University of Wales, Trinity Saint David in August 2013. When their employment contracts were amended after the merger, the men claim that they discovered the disparity in pay.  The barrister representing
the University confirmed to the Employment Tribunal last week that the University had decided that the men’s equal pay claims were well founded and the parties are now discussing financial terms, which is likely to total hundreds of thousands of pounds.  

Other men employed by the University were waiting for the outcome of this case and it is believed that they are now considering possible claims themselves.  It will be interesting to see whether there are many other groups of men who are paid less than women
doing work of equal value and whether cases of this kind will increase.

In what may be a sign of the times, it looks as though high value equal pay claims brought by large groups of women and now also by men, are going to continue and may have a significant impact on employers in the private sector.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Kim Freeman-Smith of the Berg Employment Team on 0161 833 9211 or email her at

Follow us on Twitter: @Berg_HR

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)

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