New Pay and Condition Assignment

8/10/2019 New Pay and Condition Assignment

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Despite the widespread belief in equality, we live in a world which is marred by

deep inequalities.1for centuries it was it was affirmed that women were not like

men there for they deserved fewer rights and even if we can agree that man andwoman are alike, there are still some doubts that whether they should be always be

treated relevantly.2 ver since women entered the labour force, they have been

paid less than men. !hat woman did not need to earn a "living wage#, as theirhusbands were supporting the family. mployers and policy$makers %who werealmost always men& were also very likely motivated by the belief that women

should earn less than their husbands, viewing the alternative as a threat to the

traditional balance of power within the family.

!he qual 'ay (ct 1)*+ came into force on 2) December 1)*. -n the interveningtime full$time women workers have seen their hourly rates of pay, relative to those

of fulltime men, increase from /0 in 1)* to 1.0 in 2++/. ut the almost +0

of women in ritain who work part$time continue to earn less than +0 of theaverage hourly rate for full$time men %a figure barely changed since the

implementation of the 3D( and q'(. 'art$time workers are also

disproportionately e4cluded from fringe benefits such as pensions, sick$pay,company cars, transport subsidies, discounted goods, finance and5or loans, life

assurance, private health care, childcare and recreation facilities, meal subsidies,

accommodation and paid time off for domestic reasons. !he !67 estimated in

1)) that fringe benefits were worth, on average, pence per hour to full$timeworkers, but only 8+ pence per hour to part$timers.

7abinet 9ffice figures released in 2+++ indicated that, over a lifetime, highly

skilled women lost :18/ +++ simply by virtue of being women, middle skilled

women :281 +++ and low skilled women :1)* +++. !he cost of childbearing ;:1) +++, :18+ +++ and :2 +++ respectively for high, medium and low skilled

women ; was in addition to the se4 penalty. -n all, typical high skilled mothersearned 0 of the lifetime earnings of comparable men, typical medium skilledmothers *0 and typical low skilled mothers /80.

!he gender$pay gap persists within as well as between occupations. -n 2++1, for

e4ample, the gap between male and female managers in the 6nited


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!67 report observed that there was a /./0 gap in average earnings between male

and female workers aged 22$2) years old and that this gap increased further to

11.20 for those aged between /+ and /). !he !67 commented that?@6ndervaluation of womens work, a persistent employment penalty for mothers,

occupational gender segregation, and discriminatory treatment in the workplace

continue to hamper efforts to further reduce the pay gap@. !he 6< pay gap is saidto be a third higher than the 6 average./

=hy is there such a disparity between the earnings of women and men despite

almost three decades of legislative interventionA !he first point to make relates to

the comple4ities involved? in addition to the q'(, any survey of the law relatingto equal pay must also take into account 7 provisions $ in particular, (rticle 181

!7 and 7ouncil Directive *511* %the qual 'ay Directive&. !o the e4tent that

6< law is compatible with the 7 provisions, the former should be relied upon.ut in those cases where 6< legislation is inadequate %where, for e4ample, the

pay whose inequality is challenged takes the form of unfair dismissal

compensation which is covered neither by the q'( nor by 3D(&, 7 law can berelied upon either for the purposes of interpreting the 6< legislation consistently

with it or, where this is not possible, directly. -n this latter respect the position

regarding pay is unusual in employment law terms? whereas most 7 employment

provisions take the form of directives which can be relied upon by the individual,if at all, only against the state %whether as employer or otherwise/&, (rticle 181

%and, to the e4tent that it serves only to apply (rticle 181, the qual 'ay Directive&

can be relied upon as against private sector employers too.

ritish legislation imposes an individual model of equal pay. !he legal challengeto e4isting pay structures comes only from those employees directly affected by

them, and then only if they can tailor their challenge within the narrow legal framework of the equal pay claim. !here is no obligation upon employers to review paystructures for evidence of discrimination and, while some trade unions have been

in the forefront of the struggle to improve womens pay, no recognised legal role

for them.

-n order to challenge her rate of pay an individual woman %or man& must select acomparator of the opposite se4 who is paid more than she %or he& is but whose

work is equivalent in one of three ways? i.e., is either like %broadly similar& work

to that done by the claimant, or has been rated as equivalent to hers by a Bobevaluation scheme carried out %or agreed& by her employer, or is of equal or less

value than the work done by her.

Cot only is the equal pay claimant obliged to put forward a comparator who fits

one of these three sets of criteria but the comparator must, in addition, beemployed by the same or an associated employer as the equal pay claimant and at

/mployment aw Cews Earch 2++ 2


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the same establishment in Freat ritain or one at which common terms and

conditions are observed either generally or for employees of the relevant classes.*

( woman may choose more than one comparator for an equal pay claim, andmight be well advised to do so in order to multiply her chances of success.) ut

this tactic is not without its pitfalls? inLeverton v Clwyd the Gouse of ords,per

ord ridge, counselled industrial tribunals to? be alert to prevent abuse of theequal value claims procedure by applicants who cast their net too wide over aspread of comparators. !o take an e4treme case, an applicant who claimed

equality with ( who earns :H and also with who earns :2H could hardly

complain if an -ndustrial !ribunal concluded that her claim of equality with (itself demonstrated that there were no reasonable grounds for her claim of equality

with .1+

!he reluctance of their ordships to permit multiple$comparator claims is perhaps

understandable given the delays and e4pense associated with the investigation ofequal pay claims, in particular where the claim is one of equal value %which, until

recently, required an independent e4perts report if it was to succeed&. ut there

are real difficulties in choosing an appropriate comparator, particularly in an equalvalue claim, when information on pay and Bob requirements is hard to come by

outside heavily unionised workplaces. -n addition, even independent e4perts rarely

share similar approaches to the evaluation of Bobs.

!he three possible types of claim consist, of like work, work rated asequivalent and work of equal value. ike work is defined by s.1%8& of the

q'( as work which is of the same or a broadly similar nature . . . the differences

%if any& between Ithe BobsJ . . . not IbeingJ of practical importance in relation to

terms and conditions of employment> and accordingly in comparing Ithe BobsJregard shall be had to the frequency or otherwise with which any such differences

occur in practice as well as to the nature and e4tent of the differences. -nintroducing the q'(, the 3ecretary of 3tate arbara 7astle was keen to stress thatlike work went well beyond the same Bob, a definition which she claimed was

so restrictive that it would merely impinge on those women, very much in the

minority, who work side by side with men on identical work.11

Gence, she claimed, differences between Bobs had to be of practical importancein order to preclude a like work finding. !he approach of the tribunals has not

always been as Ers 7astle envisaged it.

=ork will be regarded as having been rated as equivalent, according to s.1%&, if

the Bobs of the applicant and her comparator%s& have been given equal value in aBob evaluation scheme which has considered the demands made upon all or any

employees in an undertaking or group of undertakings under headings such as

skill, effort and decision$making, and which has been agreed by the partiesthereto.12 qual value does not mean exactly equal value $ (! accepted in

Springboard v Robson that, if the scheme assigned value within bands %1++ $ 12+

points, for e4ample, or 81+ $ 88) as in Springboard&, then the placing of two Bobswithin a single band %in Springboard, at 81+ and 82& was sufficient to render


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them equivalent for the purposes of s.1%2&%b&.1/ Kobs will also be taken to have

been rated as equivalent if it would have been given the same value under the

scheme but for the fact that different values were assigned, according to se4, to thesame levels of effort, skill and decision$making, etc. -n order that an employee is

entitled to claim under s.1%&, the Bob evaluation scheme in question must have

been analytical in form %that is, it must have considered Bobs under varioussubheadings, such as skill, effort and decision$making, rather than comparing

them in the round18&. (n applicant can only rely on a discriminatory Bob

evaluation scheme to claim equal pay if she claims that the scheme directly andobviously discriminated by assigning different values to the same levels of skill,

effort, decision$making etc according to whether the Bob$holder was male or

female.

7ourt interpretation?

-n order to succeed in a claim based on a %non$discriminatory and analytical& Bobevaluation scheme, the scheme must have been accepted by both sides %employer

and employees or representative trade union& but need not actually have been

applied to the pre$e4isting pay structures. 3o, for e4ample, in OBrien v Sim-Chem Ltd, the Gouse of ords found in favour of the applicant women whose Bobs

had been rated as equivalent to those of their male comparators, but whose

employers had failed to implement the new structure because of the Fovernmentsincome policy.1 9verturning the decision of the 7ourt of (ppeal, their ordships

ruled that the right to equal pay vested at the moment when the conclusion of

equal value was reached. =hether or not the scheme was ever applied was an

irrelevance. (nd in Arnold v Beecham Grop Ltd, the applicants claim wasaccepted by (! despite the fact that the Bob evaluation scheme which had rated

her Bob as being of equivalent value to that done by her comparator had proven too

controversial to provide the foundation for a new pay structure, and so had beenleft aside by employer and trade union. (lthough an equivalent value equal pay

claim required a completed Bob evaluation study and although this, in turn,

required that the parties involved in it had accepted it as valid, it did not requirethat they subsequently agreed to use it as the basis for pay negotiations.1

( successful claim for equal pay for work of equal value required, until 1)), the

report of an independent e4pert. !he q'( provided that a tribunal could not

find in favour of an q'( claimant unless it had received the report of anindependent e4pert on the issue of the relative value of the Bobs of the claimant

and her comparator%s&.1* 3ince 1)) tribunals may determine the question of

value, whether in favour of or against the interests of the applicant, without thereport of an independent e4pert.1

!he problems which may arise under this approach were highlighted, prior to the

passage of the amending legislation, by the decision of an industrial tribunal

decision in Cato v !est "idlands Regional #ealth Athority .1) -n that case the

independent e4pert felt unable to reach a conclusion on the relative value of theBobs done by an administration officer and her comparator technical officer. Lather

than appoint another e4pert the industrial tribunal took the view that, under the


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qual 'ay Directive, it was entitled to decide an equal value claim absent the

report of an e4pert. !he tribunal devised a Bob evaluation procedure using paired

comparison under si4 factor headings %basic educational requirements> necessarytraining and e4perience> technical knowledge and organisational skills> degree of

personal autonomy, responsibility, initiation, etc., required> physical and mental

demands including time constraints and coordination requirements> and number ofreportees and grade of person to whom Bob holder reported&, took evidence from

the applicant and her comparator over a period of one$and$a$half days, and

decided that the comparators Bob was more valuable than that of the applicant.!he tribunal may have come to the same conclusion as an independent e4pert

would have. ut without the opportunity to observe the applicant and her

comparator at work and without training on the techniques of Bob$evaluation

%much less, gender$neutral Bob evaluation&, it is hard to view the tribunalsdetermination of relative value as anything other than a shot in the dark. 3uch

untrained and uninformed decision$making is much more likely to rely upon

stereotypical assumptions about the relative value of male and female Bobs than is

a more rigorous approach. q'( cases are not heard by specialist tribunals andsuch is the relative rarity of equal value cases that employment tribunals hearing

such claims will rarely have any e4perience of the q'(, much less of the finerpoints of Bob evaluation.

(ssuming that an independent e4pert is appointed in an equal value claim, the

tribunal may not determine the question of value until it has received the e4perts

report. -t may reBect the report if, either on the application of one or other party orof its own accord, it decides that the report is unsatisfactory or its conclusion one

which . . . could not reasonably have been reached,2+ in which case it should

commission another. 3uch a course of action is rare indeed, however, leading as itwould to yet further delays.21 -n any event, the tribunal is not bound by the report

and may decide to accept or reBect the e4perts conclusions regarding value, takinginto account if it will any evidence put forward by e4perts commissioned by the

parties themselves.22 9nce the tribunal has received the report and decided on theissue of value it will either determine the case or, if the employer puts forward a

material factor defence under s.1%/&, consider it at this stage. -t is to the

employers material factor defence that we now turn.

!he employer confronted with a tribunal finding that the equal pay claimantswork is like, rated as equivalent or of equal value to that done by her

comparator%s& %or with the prospect of an equal value finding&, may claim, under

s.1%/& of the q'(, that the variation Iin payJ is genuinely due to a materialfactor which is not the difference of se4.

!his appears relatively straightforward but the q'( pre$dated the 3D(s

interpretation of discrimination in terms of the indirect %disparate impact& as well

as the direct %disparate treatment& models. =hile early decisions often reBected thepossibility of reading a prohibition on indirect discrimination into the q'(, (!.

ruled, in$en%ins v &ingsgate, that differently impacting practices were subBect to

the same tests of Bustification under the q'( as applied under the 3D(.2/


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Difficulties in interpretation %see, in particular, the decisions of (! in Reed v

Boo'er,BCC v( Smith and)nderby v *renchay #ealth Athority and of both (!

and the 7ourt of (ppeal inRatcli++e v ,or%shire CC& led to the Gouse of ordsdecision in Ratcli++e in which their ordships ruled that s.1%/& q'( must be

interpreted . . . without bringing in the distinction between so$called "direct# and

"indirect# discrimination made by s.1 3D(.28 !heir ordships appeared to beattempting to avoid the situation in which a woman, having established that she

was paid less than a suitable comparator, was then put to proof that the pay

differential was the result of discrimination. !he burden of proof is on theemployer to show that the factor relied upon to e4plain the difference in pay is

not the di++erence o+ sex. Fiven this burden of proof, the better view is that it is

for the employer to prove that the factor relied upon is not the difference of se4 in

the sense both that it does not discriminate directly as between men and women%as would a pay difference which depended upon the status of fatherhood, or

membership of the Mreemasons& and that?

%i& it does not have any disparate impact as between the se4es %as, for e4ample,

would the reward of full$time work or, in most cases, seniority or continuity ofemployment& or, if it does,

%ii& reliance upon it is nevertheless Bustifiable in line with the tests laid down by

the

7K in Bil%a-&a+has, Rinner-&hn, an+oss and .im'.2 !hese cases arediscussed in chapter but briefly they require, in order that a disparately$

impacting pay practice be Bustified, that it can be shown to? correspond to a real

need on the part of the undertaking, IisJ appropriate with a view to achieving the

obBectives pursued and IisJ necessary to that end.2 =here the reward ofparticular factors can be shown to impact disparately by se4, reliance upon them

will not be regarded as obBectively Bustified unless the factors rewarded wereimportant to the particular workers ability to perform their Bobs effectively.2*

!he maBor weakness of the q'( is that it reacts to a systemic problem in anindividual way. ven as an individualistic, complaints$driven model it is flawed

for reasons set out above. ut its even more significant flaw is that it imposes an

individual, legally highly comple4 solution on a problem of systemic paydiscrimination. 7omparisons can be made only within, rather than between,

workplaces, and no proactive approach is required of employers. !his e4plains in

part the particularly bad position of part$time women workers.

What is the purpose of the equal pay questionnaire?

!his questionnaire is intended to help individuals who believe they may not have

received equal pay to obtain information from their employers to find out whetherthis is the case and, if so, why. !he information should help to establish key facts

early on and make it easier to resolve any disputes in the workplace. -f the


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complainant decides to take a case to an employment tribunal, the information

should enable the complaint to be presented in the most effective way and the

proceedings should be that much simpler because the matters in dispute have beenidentified in advance. !he key purpose of questionnaire is to help employees

obtain relevant information in order to establish weather they are receiving equal

pay, and if not, the reasons for any differences or discrepancies.8

6nder 3ection * of the qual 'ay (ct 1)*+ a person is entitled to write to heremployer asking for information that will help her establish whether she has

received equal pay and if not, what the reasons for the pay difference are. !here is

a standard questionnaire form which can be used to do this. !he focus of the

questionnaire is on establishing whether she is receiving less favourable pay andcontractual terms and conditions than a colleague or colleagues of the opposite

se4, and whether the employer agrees that she and her comparator are doing equal

work. !he woman can send the questionnaire to her employer either before shefiles her claim with the mployment !ribunal or within 21 days of doing so. !here

is no statuary obligation on the employer to respond on equal pay questionnaire

served on them, the replies given are admissible in evidence. !he legal effect ofquestionnaire is that a failure to replay or the replay is incomplete, employers has

to give reasons in employment tribunal on what grounds he was unable to replay .

-f the woman takes a case to the mployment !ribunal, the information provided

by her employer should enable her to present her claim in the most effective wayand the proceedings should be simpler because the key facts will have been

identified in advance. -f her employer fails, without reasonable e4cuse, to reply

within weeks, or responds with an evasive or equivocal reply, the mployment!ribunal may take this into account at the hearing. !he mployment !ribunal may

then draw an inference unfavourable to the employer, for e4ample, that the

employer has no genuine reason for the difference in pay.

-f the case is been taken to the mployment !ribunal, the information provided by

her employer should enable her to present her claim in the most effective way andthe proceedings should be simpler because the key facts will have been identified

in advance. -f her employer fails, without reasonable e4cuse, to reply within

weeks, or responds with an evasive or equivocal reply, the mployment !ribunalmay take this into account at the hearing. !he mployment !ribunal may then

draw an inference unfavourable to the employer, for e4ample, that the employer

has no genuine reason for the difference in pay.

!he uropean 7ourt of Kustice has held that pay systems must be transparent.

!ransparency means that pay and benefit systems should be capable of beingunderstood by everyone %employers, employees and their trade unions&.

8ynda, (. 7. Eacdonald, quality, diversity and discrimination, 7-'D publishers, 2++8, p. *

-bid,

ynda, (. 7. Eacdonald, quality, diversity and discrimination, 7-'D publishers, 2++8, p. *$*)


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mployees should be able to understand how each element of their pay packet

contributes to total earnings in a pay period. =here the pay structure is not

transparent, and a woman is able to show some indication of se4 discrimination,the burden of proof switches to the employer who then has to demonstrate that the

pay system does not discriminate.

mployers have to keep records that will allow them to e4plain why he or she did

something, showing clearly what factors he or she relied on at the time that thedecision on pay was made. mployers have to be aware that employees may bring

complaints or make enquiries about pay decisions which were taken many years

previously, since when the person who took the decision may have left the

organisation. Mor this reason it is important for employers to keep records thatmay, in the future, help them to e4plain why pay decisions were made.*

-ts necessary to balance the ideal of transparency with the rights of individual

privacy. !he equal pay questionnaire cannot be used to require an employer to

disclose confidential information about other employees, unless the mployment!ribunal orders the employer to do so. ( woman can use the questionnaire to

request key information and it is likely that in many cases an employer will be

able to answer detailed questions in general terms, while still preserving the

anonymity and confidentiality of employees. Eostly the information requested isnot confidential but some information, such as the e4act details of a comparators

pay package, may be confidential to that person. 'ersonal data is protected by the

Data 'rotection (ct 1)) and can only be disclosed in accordance with dataprotection principles. 'ay records will usually be personal data covered by the

Data 'rotection (ct. Eoreover, other issues such as ethnic origin and medical

details are sensitive personal data to which particular safeguards apply. !hedisclosure of confidential information in the employment conte4t is also protected

by the implied duty of trust and confidence owed by an employer to an employee.

!he 97 has produced a guidance note that e4plains an employers legal

obligations when responding to an equal pay questionnaire or to a request for

information during the course of tribunal proceedings. 6nder the !rade 6nion andabour Lelations %7onsolidation& (ct 1))2 an employer is under a duty that on

request they have to disclose to a recognised trade union, information to enable

constructive collective bargaining. -nformation about pay and terms andconditions of employment generally comes within the duty to disclose, that duty

applies only to information for collective bargaining. -t is a good practice for

employers who do not recognise trade unions to communicate regularly with their

workforce and, where appropriate, their representatives.)

* http?55www.equalities.gov.uk5pay5updateNquestion.htm

-bid,

) http?55www.equalities.gov.uk5pay5updateNquestion.htm


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Code of Practice

!he equal opportunities commission %97& produced a revised 7ode of 'ractice

on qual 'ay, which was implemented on 1 December 2++/. !he code is not

legally binding on employers, but failure to act on its provisions could be taken

into account by the employment tribunal. !he 7ode of 'ractice on qual 'ayrecommends an equal pay review as the best means of ensuring that a pay system

delivers equal pay. 7ompleting an equal pay review is, therefore, the best way of

ensuring that they are complying with the need to eliminate unlawfuldiscrimination in pay system. =hatever kind of equal pay review process is used it

should include.1+

7omparing the pay of men and women that weather they are doing equal work.

mployers have to check for one or more of the prospects, like work, work rated

as equivalent> work of equal value as these checks are the foundation of an equal

pay review to identify any equal pay gaps between woman and man employee andeliminate those pay gaps that cannot satisfactorily be e4plained on grounds other

than se4. !hese features are the same, regardless of the siOe of the public body anda pay review that does not include these features cannot claim to be an equal pay

review. qual pay reviews are not simple a data collection e4ercise but entail a

commitment to put right any se4$based pay inequalities. 'ublic authorities have toconsult with employees and where possible should work in partnership with trade

unions when carrying out equal pay reviews.11

1+ynda, (. 7. Eacdonald, quality, diversity and discrimination, 7-'D publishers, 2++8, p. *)

11 http?55www.eoc.org.uk.P/.1/*.212.825sitearchive5eoc5'DM5lawNcodeNofNpractice.pdfQ

New Pay and Condition Assignment

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