Employees can claim equal pay for equal work done by a comparator employee of the opposite sex. If successful at tribunal, you could find yourself with a hefty wage arrears bill to pay in addition to likely press interest.
So, what is equal work? It consists of 3 areas:
• Like work - the same or very similar work.
• Work rated as equivalent – work which could be different in nature, but which has been giving the same banding by you or by an independent assessor
• Work of equal value - work which could be different in nature, but which your employee claims requires a similar level of skill and ability. For instance, a female hotel cleaner who claims she ought to be paid the same rate as a male hotel porter as the skills required for the job are similar.
Defending the Claim The onus is initially on your employee who must:
• Select an appropriate comparator of the opposite sex
• Prove that the comparator is employed to carry out equal work
• Identify a discrepancy in pay between the two terms and conditions of employment At this stage, you may to be able to show a non-discriminatory reason for the difference in pay.
Material Factor You will establish a defence if you can show that the difference is due to a “material factor” such as location or experience which itself does not put one gender at a material disadvantage.
For example, your male employee may be paid more than a female doing the same job because he works in Central London or has greater experience. However, where the greater experience arises as a result of a potentially discriminatory factor (such as the female having taken maternity leave), then the defence may not succeed.
Avoiding Claims Instructing your employees not to discuss their pay with each other is likely to be unenforceable. However, the Code of Practice on Equal Pay recommends carrying out an equal pay audit and an online facility for this is available from the Equality and Human Rights Commission.
Equal Pay Audit Tribunals are now able to order that an employer carries out an equal pay audit where it finds that there has been a breach of equal pay legislation. Not all breaches will carry this requirement but if you are ordered to undertake one, you will need to publish the audit on your website and make it available to all employees who it covers.
If you need any clarification on this issue then contact the Peninsula Advice Service on 0844 892 2772