Helena Woodward- Vukcevic from law firm Hart Brown, outlines the situation on equal pay, following the recent sex discrimination and equal pay claim win by a group of men.
A group of 23 male workers at a university in Wales who issued a sex discrimination and equal pay claim in the employment tribunal claiming they were paid less than their female colleagues on the same pay grade have received £500,000 in compensation. The case has received a lot of attention in the press as they are thought to be the biggest group of men to have launched legal action claiming for equal pay and sex discrimination. Usually, equal pay cases involve female employees seeking pay equal to that of higher paid male comparators. The Equal Pay Act introduced in 1970 even referred to the claimant in equal pay claims as a woman.
The Equal Pay Act 1970 has since been replaced by the Equality Act 2010 which continues to assert the principle that men and women should receive equal pay for equal work. For an equal pay claim to succeed a claimant must be employed by the same employer as a comparator, performing like for like work, or work rated as equivalent or work of equal value. Successful claims can require payment of arrears of back pay for up to 6 years. In addition to this, equal pay claims do not have to just cover pay but also other contractual and even non-contractual benefits such as discretionary bonuses.
In most equal pay cases the employer is likely to have far more information than the claimant as to all its employees' salaries and earnings. Therefore, it is not always easy for the claimant to identify an appropriate comparator. Where a claimant's contract of employment has a pay secrecy clause, this can be overridden if they suspect inequality of pay. A claimant can obtain information to identify an appropriate comparator through the use of the statutory equal pay questionnaire procedure or through the new informal question and answer procedure.
Where an employee thinks that they are suffering from sex discrimination in contractual pay, but cannot identify an actual comparator, section 71 of the Equality Act makes provision for an employee to bring a claim under direct sex discrimination when it is possible to rely on a hypothetical comparator. Section 71 also allows a claimant to point to an individual and argue that the pay difference is too great, and that the reason for this is sex. Following the successful action brought by the group of men, it will be interesting to see whether we will now see an increase in claims brought by men or in fact any other groups who share a protected characteristic.
