08 September 2011 #Employment
The Equal Pay Act (now the Equality Act) was introduced to ensure that men and a women performing equal work would receive the same pay, unless the difference could be shown to be because of a material factor other than sex. However a recent case has shown that a successful claim may result in the woman receiving more pay than her comparator.
A woman can pursue an equal pay claim where any term of her contract is less favourable than a term of a similar kind in the contract of her male comparator. In a previous case the Court of Appeal held that basic pay, attendance allowances and fixed bonus payments were all part of a single "term" relating to pay and so they should be aggregated rather than considered separately. This approach prevented the claimants "cherry-picking" aspects of each of their comparators` remuneration package so as to achieve a higher overall remuneration.
However in St Helens & Knowsley Hospitals NHS Trust v Brownbill and others the EAT held that this decision was an exception and female employees could pursue equal pay claims against male comparators who received higher weekend and night work supplements, even though the females` overall pay package was higher than the men`s. The employment tribunal had been wrong to aggregate the supplements with basic pay to form a single "term" for equal pay purposes.
When considering whether male and female employees in your organisation are receiving equal pay for equal work you need to compare each individual term. If a man receives a higher payment for weekend work you will not avoid an equal pay claim by showing that the woman receives a better hourly rate. Equal pay law is about equality of individual terms, not equality of overall remuneration packages or fairness of pay. The courts want to avoid a package approach to equal pay obscuring discriminatory pay practices.
employmentbuddy has a range of equal pay resources to help employers deal with this issue.