The underlying principle of equal pay is that men and women should receive the same pay for the same work.  So where a person is employed to do work that is equivalent, or of equal value, to someone else, they are entitled to be paid the same.

Most equal pay claims are brought by women.  In recent month, Local Authorities have had to deal with a number of these type of claims, necessitating job evaluations and the introduction of new harmonised pay structures.  The total cost to Birmingham City Council in relation to a number of equal pay claims was in excess of £1m. 

There are three categories of equal work set out in the Equality Act.

-           like work (i.e. work that is the same or broadly similar)

-           work related as equivalent

-           work of equal value

To make a claim for work that is ‘rated as equivalent’ the employer must have carried out a Job Evaluation Study (JES) that rated the jobs in question as equivalent or that they would have been rated as equivalent had the JES not been made on a sex specific system.  The person can also bring a ‘rated as equivalent’ claim where the work is rated higher than that of a comparator. 

‘Work of equal value’ is work which is not ‘like work’ or ‘work related as equivalent’ but work which is nevertheless equal in terms of the demands made on the claimant and the comparator.

Where the employer can prove that the variation in pay is due to a material factor which is not directly or indirectly discriminatory, employers can rely on the material factor defence. 

Because of the success claimants have had against Local Authorities, the private sector now finds itself in the firing line.  For example, ASAD appears to have approximately 1,000 equal pay claims lodged against it in the employment tribunal. 

Female check-out staff and shelf stackers in ASDA’s supermarkets – most  of whom are women – are claiming that they do essentially the same job as the people in ASDA’s warehouses – the majority of whom are men.  They claim that their jobs are the same because the warehouse staff are responsible for taking items off shelves, putting them on pallets and loading them into lorries.  The supermarket staff do the reverse; they take the pallets off lorries, take the goods off pallets and stack them on to the supermarket shelves.  The basis of these claims is that the jobs are similar (like work) or that they are of equal value. 

In a public sector claim, women working as cleaners and school dinner ladies successfully compared themselves with men employed as refuse collectors and street cleaners.  So it appears these claims against ASDA have good prospects. If they are successful, the claimants may be entitled to up to six years back pay to compensate for any difference in earnings.  The claim will be heard next year in the Manchester tribunal and will no doubt be watched closely by employers. 

In the private sector pay levels are less likely to be set by work based agreements, which means that information about what other employees earn is often based on what colleagues choose (or are allowed) to share with each other.  So, people working in the private sector face a very real problem in discovering the existence of pay equalities.

Statistics show that the gender pay gap stands at about 15% for full-time employees.  The ASDA case may encourage more employees to consider whether they might have an equal pay claims against their employer.

Reggie Lloyd
01206 217347
reggie.lloyd@birkettlong.co.uk