Case ref: 7.4/ May 2005
Summary of case
Ms Y had been employed by a company covered by the PCS Commercial Sector for 22 years. She had worked part time from 1993 but recent returned to full time hours.
The solicitor described her circumstances as follows:
"Your member is now in Grade/Pay Band G , which is a management grade, and has been since 1996. She now manages 22 people. She has become aware that some of those people she manages who are in a more junior grade earn more than she does and that other colleagues who were promoted to G Grade in 1999 (three years after your member) are also paid more than she is. I understand that there have been two changes in the 1990s in the regime for progression up the pay/grading bands which have applied to your member and that prior to 1999, employees could progress through good performance ratings and pay rises were on the basis of a mixture of factors, including performance and the individual's existing position within their pay band.
"Since around 1999, there has been no possibility of progressing up the pay scale and everyone is paid an annual pay increment which is based on the same percentage (depending upon the grade and their position within it) or the same monetary amount. Your member's position is therefore effectively frozen and she will never catch up with the rate of pay as her comparators."
The PCS bargaining unit requested advice on whether or not the company's arrangements breached the Equal Pay Act.
Key advice provided by Thompsons
The following extract covers the key advice given in this case.
"You have asked whether your member would have an equal pay claim and she has identified two categories of comparator in her grade. One category of comparator has significantly longer service than your member, including in the management grade. The second category of comparators are those who were promoted to your member's grade in 1999.
"One comparator in this category has more service than your member and the other two have roughly the same service. The reason they are now paid more than your member is apparently because at the time they were promoted to G Grade they were at a higher point within their previous grade than your member because they had been in that grade for longer than your member. It appears, therefore, that your member has been effectively penalised for securing her promotion within a shorter period of time.
I have considered again the case law in relation to the probable "genuine material factor" defence which the company is likely to advance in relation to any equal pay claim brought by your member. The first relates to length of service/experience. As you aware, the leading case on this matter is that of Mrs B F Cadman -v- Health and Safety Executive which followed European case law in confirming that where length of service has an indirectly discriminatory affect on women and the employer cannot show that this effect is justified by experience being relevant and valuable for the particular job, the equal pay claim succeeds. This is in line with a case in which my own firm was involved and of which you are aware, Mrs P M Crossley -v- ACAS in 1999 and the position has been reconfirmed only this year.
"Both the above claims were brought, however, on the basis that statistical evidence showed that in the particular Respondent employer, more women than men had less service and so were at a lower point on the pay scale and more men than women had longer service and so were at a higher point. Thus, the triggering argument was that the seniority/experience factor did have an indirectly discriminatory impact on women, who took career breaks and suffered breaks in service to have a family."
Legal department comment
Thompsons have been instructed to provide further assistance on this case which is still ongoing. Officials are reminded that further advice on the Equal Pay Act was given in Discrimination Bulletin No 3 (mab028-04).
These are complex matters and help should always be sought from Geoff Lewtas and colleagues at PCS HQ before launching any claim. Similarly, contact the Legal Department in Leeds if you need any further information about the claim highlighted above.