Equal pay, salary differential

Case ref: 3.3/August 2004

Summary of case

A male worker (Mr X) was employed on a temporary short term contract. Our member, Ms Y, was not satisfied that the supporting evidence in respect of "genuine material factors" for placing Mr X on a higher salary level was justification for the salary differential.

Advice requested

Thompsons were asked to advise if Ms Y had a potential equal value claim.

Key advice provided by Thompsons

The solicitor confirmed that Ms Y had a potential claim for equal pay under Section 1(c) of the Equal Pay Act 1970. The solicitor went on to suggest that the Tribunal were likely to appoint an independent expert. However, whilst there were prospects that this first hurdle would be overcome, the solicitor's view was that at least one of the employer's genuine material factor defence had reasonable prospects of succeeding. A key passage of the advice letter reads as follows: 

"I think their market forces and skills shortages is the stronger defence. They make clear that Mr X was the only applicant for the Policy Assistant post, scored 21 out of 25 at the interview and was only engaged on a short term contract to cover the post pending a review of the workload. 

"I understand that Mr X's contract did indeed end on 27 February 2004 after a period of about six months. The Court of Appeal made clear in Enderby v Frenchay Health Authority and anor 1994 ICR112 that "the state of the employment market, which may lead an employer to increase the pay of a particular job in order to attract candidates, may constitute an objectively justified economic ground". I feel that such a market forces and skills shortage defence is more likely to succeed as the comparator was only employed on a short fixed term contract which ended on 27 February 2004. 

"The employer also rely upon a claim that the comparator had skills and experience well above the operating level of someone in Zone 2. Such a genuine material factor defence could also be successful especially if the employer can show that the skills and experience are pertinent to the job that the comparator carried out." 

Although the solicitor was not optimistic that this case would be successful, advice was provided on the likely value if a claim was won. PCS were advised: 

"A successful claim would have the effect of modifying Ms Y's contract until some supervening act takes place. Therefore, if this claim was successful, even though her comparator has now left employment, your member should be entitled to arrears of pay and the higher rate of pay brought about by the operation of the equality clause. I doubt the employer would be able to demonstrate that the comparator's fixed term contract ending was a supervening act." 

Finally, the following advice was given on time limits: 

"A claim for equal pay must be lodged within six months from the date of your member leaving employment. There is no time limit for an existing employee bringing proceedings under the Equal Pay Act 1970."

Legal department comment

The advice letter for this case gives some useful pointers for Equal Pay claims, particularly with regard to the likely acceptance by ET's that the state of the employment market is a factor which may justify higher rates of pay for some candidates. Given the complexity of legislation in this area, and in addition to obtaining advice from Thompsons, officials are advised to consult with Geoff Lewtas at HQ and Policy and Research before lodging any claims based around equal pay legislation.

Updated 29 Jan 2017

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