Key points
§  Add a note hereArticle 141 (formerly Article 119) of the Treaty of Rome (which became part of the law of the United Kingdom on 1 January 1973) and EC Regulations and Directives made under that Treaty oblige each Member State of the European Community to 'ensure and maintain the application of the principle that men and women should receive equal pay for equal work'. As was pointed out by the Court of Appeal in Shields v Coombes (Holdings) Ltd [1978] ITR 473, European law takes precedence over UK legislation. In short, UK courts and tribunals must not follow domestic legislation if it conflicts with European law.
Add a note hereThe Treaty of Amsterdam with its consequent amendments to, and renumbering of, Articles in the Treaty of Rome, came into force on 1 May 1999.
§  Add a note hereIn Great Britain, this principle is embodied in the Equal Pay Act 1970, as amended by the Equal Pay (Amendment) Regulations 1983, and the Sex Discrimination Act 1986. The purpose of the 1970 Act is 'to prevent discrimination, as regards terms and conditions of employment, between men and women'. The Act is not solely concerned with the question of equal pay (in spite of its title). An employee may exercise her (or his) right to equal pay and conditions under the terms of an equality clause implicitly incorporated in every contract of employment. Thus, a woman may legitimately lay claim to the same holiday and sickness benefits as a man in the same employment (if employed by the same or any associated employer, even if employed in different premises or at a different location), as well as equal access to her employer's occupational pension scheme, the same working hours (unless these are otherwise regulated by statute), the same fringe benefits, the same opportunities for promotion and further training, and so on.
§  Add a note hereIn Leverton v Clwyd County Council [1989] IRLR 28; [1989] ICR 33, a nursery nurse sought to compare her value with that of 11 male workers employed by the council at different locations in a variety of occupations – from clerks to caretakers. The House of Lords held that, although the nurse and her 11 'comparators' were all employed under essentially the same terms of employment (laid down in the Council's 'Purple Book') the difference between her annual rate of pay and theirs was due to a 'genuine material factor'. She worked for fewer hours every week and enjoyed longer annual holidays.
§  Add a note hereA woman may exercise her right to equal treatment by demonstrating to an employment tribunal either that she is employed on like work with a man in the same employment, or on work rated as equivalent under some form or other of job evaluation or job grading scheme, or that she is employed on work that is of equal value to that of a man in the same employment. A man may also exercise those rights if he believes that he is being treated less favourably than a woman in the same employment.
Add a note here'Like work'
§  Add a note hereThe expression like work means work of the same or a broadly similar nature; in other words, work that is either identical to that undertaken by a man or that contains differences that are of no practical importance. For example, a woman may now and then need help in lifting and carrying the occasional heavy load, whereas a man in the same job may be able to cope without help. If, in most other respects, the two jobs are identical, the pay and conditions of each should also be the same.
Add a note here'Work rated as equivalent'
§  Add a note hereIf two distinct jobs have been rated as equivalent under a job evaluation scheme (using criteria such as skill, qualifications, effort, responsibilities, etc), then men and women filling those jobs should enjoy the same pay and conditions or, at the very least, be on the same pay scales. In disputed cases, the tribunals will certainly want to examine the method of job evaluation employed and the criteria applied. Pay differentials based solely on merit or ability are justifiable if the employer can demonstrate that these are applied fairly and equitably irrespective of sex.
Add a note here'Work of equal value'
§  Add a note hereA woman who is neither employed on like work nor on work rated as equivalent to that of a man in the same employment may, nonetheless, claim that she is employed on work of equal value; that is to say, equal value in terms of the demands made on her (for instance, under such headings as effort, skill and decision). If there is any dispute, the matter may be referred to conciliation by a conciliation officer of ACAS and/or to an employment tribunal for a decision. In the latter instance, a tribunal will commission a report from an impartial and independent expert as to whether the two jobs are or are not of equal value.
Add a note hereThe rules applicable to tribunal proceedings involving a claim for equal pay for work of equal value under the Equal Pay Act 1970 are as laid down in Schedule 2 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2001, which came into force on 18 April 2001. The rules in Schedule 3 are complementary to those in Schedule 1 which also apply to such proceedings.
Add a note hereJobs previously filled by a man/woman
§  Add a note hereA female employee, who occupies a job previously filled by a man, is entitled to be paid the same as her predecessor in that job. Any differential between her pay and conditions of employment and those of her predecessor must be justifiable on grounds other than those of sex (eg, length of experience, qualifications, length of service) (see Macarthys Limited v Smith [1980] IRLR 211). The same approach must, of course, be adopted in the case of a man who is appointed or promoted to a job recently vacated by a woman.
§  Add a note hereA pay scale consisting of a series of incremental advances based on length of service and/or experience will justify a difference between the rate of pay received by a woman appointed to a job previously filled by a man if that same rate of pay would have been offered to a man with essentially the same qualifications, skills and experience as her own. The same rule can be applied if longer annual holidays and more generous sickness benefits are available to employees who have worked for their employer for a specified period (regardless of sex).
Add a note hereMeaning of 'in the same employment'
§  Add a note hereAn employee may only compare her (or his) job with that held by a man (or, if male, a woman) in the same employment. Comparisons with the pay and conditions of persons employed by another employer or by a different company will not be entertained by the employment tribunals. However, an employee is perfectly entitled to make comparisons with the pay and conditions of persons employed by his or her employer (or by any associated employer) in other establishments and towns within Great Britain (eg, if the employer owns and operates a chain of restaurants).
Add a note hereCollective agreements and sex discrimination
§  Add a note hereUnder the Sex Discrimination Act 1975, any term in a legally binding collective agreement is void if it discriminates directly or indirectly against an employee on grounds of sex or marital status. With the coming into operation on 7 February 1987 of the Sex Discrimination Act 1986, the same rule applies to every collective agreement – whether or not that agreement is legally enforceable. A discriminatory term in a collective agreement is one that presumes to treat one sex less favourably than the other, either in terms of the number of hours a person is required to work, fewer holidays for female employees vis à vis their male colleagues in the same department, the exclusion of part- time workers from certain benefits available to full-time employees, different retirement ages for men and women; and so on.
§  Add a note hereAs the terms of a collective agreement are usually imported into an individual employee's contract of employment, employers should long since have amended those contracts of employment to eliminate any discriminatory terms. If they have not done so, any employee (male or female) who is adversely affected by such a term may refer the matter to an employment tribunal and seek compensation for any resultant loss of pay or benefits.
Add a note hereExceptions: pregnancy, childbirth, etc
§  Add a note hereAn employer is entitled to treat a female employee more favourably in relation to pregnancy or childbirth (eg, time off with pay to attend an ante-natal clinic). However, with the coming into operation on 7 February 1987 of the Sex Discrimination Act 1986, a female employee must be permitted to retire at the same age as a man in the same employment, notwithstanding any contrary provision either in her contract of employment or in the rules of the pension scheme to which she contributes (ibid. section 2).
Add a note herePresumed 'equality clause' in contract of employment
§  Add a note hereAs was mentioned earlier, an employee may enforce her (or his) right to equal treatment through a presumed equality clause in her contract of employment. If an employment tribunal upholds a complaint of unfair or unequal treatment, it may order the employer to pay backdated arrears of remuneration for a period of up to six years.
§  Add a note hereAlternatively the employee may be awarded damages for breach of the equality clause which, in all respects, is a breach of a term of her contract of employment. In any proceedings of this nature, the burden of proof rests with the employer. He will need to show that the advantage enjoyed by a male employee over a female counterpart (or vice versa) is genuinely due to a material difference (other than that of sex) between her case and his (or, as the case may be, between his case and hers).
Add a note hereOccupational pension schemes
§  Add a note hereUnder the Pensions Act 1995, occupational pension schemes that do not contain an equal treatment rule will be treated as including such a rule. An equal treatment rule is a rule that relates to the terms on which (a) persons become members of the scheme, and (b) members of the scheme are treated. In short, if a woman is employed on like work, or work rated as equivalent to, or work of equal value to, that of a man in the same employment, any term in an occupational scheme that is (or becomes) less favourable to the woman than it is to the man, shall be treated as so modified as not to be less favourable (ibid. section 62). There are exceptions to the equal treatment rule, that will be familiar to the trustees of occupational pension schemes and are beyond the scope of this handbook.
Add a note hereEqual pay questionnaires
§  Add a note hereOnce section 42 of the Employment Act 2002 comes into force, any person, who considers that she (or he) may have a claim under section 1 of the Equal Pay Act 1970, may submit a questionnaire to her employer (in a yet-to-be-prescribed form) asking for an explanation. Her employer's refusal or failure to complete the questionnaire within a prescribed period (eg, 56 days) will be admissible in evidence in any subsequent proceedings before an employment tribunal – as will the contents of the completed questionnaire and any answers that are evasive or equivocal. The procedure will undoubtedly be similar to that available to employees and other workers under the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995