Thirty years after the introduction of the Sex Discrimination Act and sex discrimination at work is as controversial a topic as ever. The beginning of 2006 saw a flurry of press comment concerning the treatment of men and women in the workplace, reflecting more than ever the differing views and emotive responses this issue raises.
In the last week of December 2005, the Equal Opportunities Commission published research saying that women working in the private sector are paid 45% less per hour then their full time male colleagues. The Equal Opportunities Commission (“EOC”) has also reported that at current rates it would take forty years to achieve the same number of women directors as men in FTSE 100 companies. According to the EOC, equality is still only a “thin veneer” for women and it is calling for a new generation of laws to help narrow the gap between males and females in the workplace.
Morrisons hit the headlines when the GMB Union accused it of sex discrimination regarding the redundancy pay-outs being made to male and female staff. Meanwhile the Government has been trying to push through its Work and Family Bill, which plans from April 2007, to give women nine months’ paid maternity leave – instead of the current six. Many, however, are arguing against the proposals on the basis that they will put too high a burden on business and will cause a backlash against women, with employers simply not employing women of childbearing age. In contrast to the British approach,
Whatever your views, discrimination cases make press headlines. Employers, grappling with topical discrimination issues…promotion prospects, flexible working…should be careful not to forget a fundamental question – what if female employees are being paid less then their male colleagues?
The equal pay claim
The equal pay claim is one of the least understood sex discrimination claims, but is becoming increasingly popular. City institutions should not be complacent. They operate in a traditionally male dominated environment, where pay/bonus structures are often opaque.
The Equal Pay Act 1970 outlawed pay discrimination. It implies an equality clause into every contract of employment in establishments in
What is pay?
Who is protected?
The meaning of like work, work rated as equivalent, work of equal value
These are key concepts under the Equal Pay Act.
This is where the work of the claimant and comparator is the same or broadly similar.
Work rated as equivalent
This is where the jobs have been given equal rating under a job evaluation scheme.
Work of equal value
This is not defined by
Genuine material factor defence
An employer can defeat an equal pay claim by showing that the difference in pay is explained by something other than sex – i.e. a genuine material factor not coloured by sex discrimination. This is a crucial point for employers where the work of claimant and comparator are considered equivalent.
There is no time limit for an existing employee to bring equal pay proceedings. However, where employment is terminated a claim must be brought within six months of termination of employment (this can be extended in certain circumstances, for example, where an employer has deliberately concealed any factor relevant to the claim).
If a claim is successful the Tribunal has the power to:
Arrears or damages for equal pay can be awarded for up to six years before the date when the proceedings were instituted. Therefore the financial impact of an equal pay claim on an employer can be substantial, especially if the comparator was earning a significant sum.
Equal pay cases in practice and preventative measures
Equal pay cases are usually onerous for employers, being complex and frequently long (for example especially if an independent expert is instructed). Notoriously long and involved, claims force employers to look into their pay practices and reveal sensitive information. They are also often linked to a sex discrimination claim, which in itself is a time consuming and costly claim for an employer to defend. Claimants can serve equal pay questionnaires, involving employers in a difficult balancing act; responding to the questionnaire (otherwise adverse inferences can be drawn by the Tribunal) and respecting their duty of confidentiality to other employees. The financial impact of the claim can be substantial.
So what can you do? Steps to reduce exposure include:
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