Discrimination II - Equal Pay: The Sex Equality Clause

Fredman

'By penetrating job labels to examine the characteristics of women's work, the notion of equal value opens up dramatic possibilities for transcending evaluations of women's work which depend on deeply held stereotypes and entrenched inequalities in women's bargaining power."

What three central concepts does the notion of 'equal work' in Chapter 3 of Part 5 give rise to?

'Like work' 'work rated as equivalent' 'Work of equal value'

What are the four stages of an equal pay claim?

1. 'Like work', 'work rated as equivalent' or 'work of equal value' 2. Eer's material factor defence; 3. whether material factor

What are the two exceptions to the rule striking out a claim where a pre-existing job evaluation scheme voluntarily undertaken by the employer does not rate the work of C and comparator as equivalent?

1. Hovell v Ashford & St Peter's Hospital NHS Trust - open to a tribunal to be persuaded not to strike out where there are small differences in scoring. 2. S.131(6) and (7) - tribunal may refuse to strike out claim if reasonable grounds to suspect study was tainted by sex discrimination or is otherwise unreliable.

What are the key elements of 'like work'

A and B's work are the same or broadly similar, and any differences are not of practical importance in relation to the terms of their work, taking into account their frequency, nature and extent.

Job evaluation studies are not a precise science. They involve two elements: 1. Evaluation of the jobs; 2. Fixing of the grade boundaries. Employers may set boundaries that encompass a wide class of jobs to allow for relatively simplified pay scales.

Bainbridge v Redcar and Cleveland BC (No.2)

Time at which C and comparator do their work normally disregarded as a factor.

Dugdale v Kraft Foods Ltd

In a job evaluation study, each component of the job concerned must be graded, not just the whole job in a broad-brush manner.

EHRC guidance; CA decisions in Bromley v H&J Quick Ltd and Eaton Ltd v Nutall.

What makes work 'of equal value'?

Equal in terms of demands made on A by reference to factors such as effort, skill and decision-making.

Eaton Ltd v Nutall

F. C was a production scheduler with responsibility for ordering supplies of 2,400 items up to a value of £2.50 each. Comparator had responsibility for 1,200 items between values of £5 and £1,000 each. H. The differences were of sufficient importance that work was not 'like' - if comparator made a mistake the consequences would be more serious.

Pickstone v Freemans plc

F. Eers employed men and women as warehouse operatives and checker warehouse operatives. Female warehouse operatives claimed they were entitled to equal pay with a male checker warehouse operative on the basis that they were doing work of equal value. The employer argued they were employed on like work with other male employees in the same establishment so not entitled to rely on the provisions. H. S.61(5)(c) only intended to have effect where the particular man with whom C seeks comparison is employed on such work. Now codified in s.65(6)

When will work be rated as equivalent?

If a job evaluation study: (a) gives an equal value to A's job and B's job in terms of the demands made on a worker, or (b) would give an equal value were the evaluation not made on a sex-specific system.

What did Phillips J say about 'like work' in Capper Pass Ltd v Lawton

Important not to be too pedantic - broad approach required. Two-stage inquiry: 1. Is the work of a broadly similar nature? 2. If yes, are the differences of 'practical importance in relation to [the] terms [of their work].' - on second point the only relevant differences are those which in practice will be reflected in the terms and conditions of employment.

Even if C's job is rated higher than that of a comparator, if she is paid less she can pursue a work rated as equivalent pay claim.

Redcar and Cleveland BC v Bainbridge

The references to 'differences' necessitate a comparison between the things that C and comparator actually do and the frequency with which they are actually done, rather than between their respective contractual obligations.

Shields v E. Coomes (Holdings) Ltd

What has research revealed about the reality of 'work of equal value' claims?

They often become bogged down in protracted delays generated by preliminary issues.

Three relevant considerations are level of responsibility or control assumed by C and comparator, whether supervision involved, and any skills involved.

Waddington v Leicester Council for Voluntary Services

When will a job evaluation study be valid?

When it has been accepted or adopted by the employer and their employees.

Which type of comparative work was not included in the Equal Pay Act 1970, but was introduced in 1983 after a challenge launched by the European Commission?

Work of equal value.