Equal pay 2: unequal pay for equal work

It is the duty of the employer to come to the hearing with the relevant information prepared in a comprehensive and readily assimilable form, including adequate details of any job evaluation scheme, or other payment method, in use (Eaton Ltd v Nuttall).

If the woman demonstrates a difference in treatment as regards any contractual term between her and her comparator, then she will have made out a prima facie case of discrimination contrary to the EqPA (that is, a case sufficient to call for an answer from the employer). The only answer available to the employer is a "material factor" defence under s.1(3) of the EqPA (see our next Guidance Note).

UNEQUAL PAY

Article 119 of the Treaty of Rome has direct effect (see Equal pay 1: legal framework and preliminary issues) in cases where men and women receive unequal pay for equal work carried out in the same establishment or service (see Equal pay 1: legal framework and preliminary issues). But a pay differential between workers of different sexes does not constitute discrimination contrary to Article 119 if it may be explained by objectively justified factors unrelated to any discrimination on grounds of sex (Specialarbejderforbundet i Danmark v Dansk Industri, acting for Royal Copenhagen A/S).

In principle, the burden of proving sex discrimination in pay contrary to Article 119 is on the woman who, believing herself to be the victim of such discrimination, makes a claim against her employer under a domestic statute such as the EqPA invoking Article 119. But, where she establishes a prima facie case of discrimination, the burden of proof shifts to the employer (Enderby v Frenchay Health Authority and Secretary of State for Health). It then has to show that the difference in pay is based on objectively justified factors unrelated to any discrimination on grounds of sex (see our next Guidance Note ). There is a prima facie case of discrimination where:

According to the Northern Ireland Court of Appeal, the lower-paid job need not be done "almost exclusively" by women. The relevance of the number of women in a group is as an indicator of its being traditionally a less well-paid group, on account of its being composed mainly of women. It is because the number of women within the group identify it as a "female profession" that the presumption of discrimination arises (British Road Services Ltd v Loughran and others).

Under the proposed Directive "on the burden of proof in cases of discrimination based on sex", which would include claims made purely under the EqPA as well as those invoking Article 119, the employer would have to prove that there had been no breach of "the principle of equal treatment" (that is, the absence of any discrimination based on sex, either directly or indirectly, particularly by reference to marital or family status) once the woman had established "facts from which discrimination may be presumed to exist"; and she would be given the benefit of any remaining doubt.

Meaning of "pay"

Despite its name, the EqPA applies to all contractual terms and not just those concerned with pay. These include terms relating to a person's membership of, or rights under, an occupational pension scheme, other than ones in relation to which an "equal treatment rule" would not operate if they were included in the scheme (see Equal pay 1: legal framework and preliminary issues).

Article 119 applies to "pay" within the meaning of the second paragraph of that Article (see Equal pay 1: legal framework and preliminary issues). Benefits provided by law may come within the concept of "pay", and Article 119 also applies to advantages which an employer gives to workers although it is not contractually obliged to do so. The legal nature of the consideration is not important for the purposes of the application of Article 119 provided that it is granted in respect of employment (Garland v British Rail Engineering Ltd).

The ECJ has consistently held that the concept of "pay" within the meaning of Article 119 comprises any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his or her employment from the employer. The fact that certain benefits are paid after the end of the employment relationship does not prevent them from being "pay".

The assumption underlying that approach is that the employer commits itself, albeit unilaterally, to pay its workers defined benefits, or to grant them specific advantages, and that the employees in turn expect the employer to pay them those benefits, or to provide them with those advantages. Anything that is not a consequence of that commitment, and does not therefore come within the corresponding expectations of the employees, falls outside the concept of "pay" (Neath v Hugh Steeper Ltd).

Article 119 does not apply to social security benefits within the scope of EEC Directive No.79/7 on equal treatment in social security matters. In order to determine whether a benefit comes under that Directive or Article 119, the only possible decisive criterion (although not the only criterion) is whether the worker receives the benefit in question from the employer by reason of the employment relationship between them (Bestuur van het Algemeen Burgerlijk Pensioenfonds v Beune).

The scope of Article 119 also does not extend to other "working conditions" which are covered by the EC Equal Treatment Directive (No.76/207/EEC) (Defrenne v SABENA (No.3)). But the ECJ increasingly blurs the distinction between "pay" and access to benefits, which it once considered to be covered by the Equal Treatment Directive (see Burton v British Railways Board).

A woman complaining of less favourable treatment in comparison with a man as regards a non-contractual benefit, or access to such a benefit, should - assuming that she is employed on like work with the man, work rated as equivalent with his or work of equal value to his - make a claim under s.1(2) of the EqPA relying on the broader concept of "pay" in Article 119, rather than under the Sex Discrimination Act 1975.

Less favourable or absent term

A woman making a claim purely under s.1(2) of the EqPA, not invoking Article 119, must show that a term of her contract governing, for example, her rate of pay is or has become less favourable to her than the comparable term of her comparator's contract, or that his contract includes a term entitling him to, for example, the use of a company car which is absent from hers.

The natural meaning of the word "term" in s.1(2) of the EqPA, which is not defined in that Act, is a distinct provision or part of the contract which has sufficient content to make it possible to compare it, from the point of view of the benefit it confers, with a similar or corresponding provision or part in another contract, to see whether it is more beneficial than that provision or part. A "term of a similar kind" is a term making comparable provision for the same subject-matter, and the words "benefiting that man" mean that the term must be one which is beneficial to him, as opposed to being burdensome (Hayward v Cammell Laird Shipbuilders Ltd (No.2)).

On a claim by a woman under s.1 (2)(b) of the EqPA - that she is employed on work rated by a job evaluation study ("JES") as equivalent with that of her comparator, but is treated less favourably than him as regards a contractual term - that term must be "determined by the rating of the work". At best, that phrase indicates that the very outcome of the equivalent work rating is to show the term to be less favourable or absent. It does not mean that the employer's pay structure must have been adjusted as a result of the JES's conclusions. The comparison of the respective terms of the woman's and her comparator's contracts required by s.1(2)(b) becomes feasible once the JES has been carried out, and has resulted in a conclusion that the woman's job has been evaluated under s.1(5) of the EqPA (see p.8 below) as equivalent to her comparator's job (O'Brien and others v Sim-Chem Ltd).

In Hayward (No.2), a woman's contract specified her basic salary on which overtime was based and the overtime rate, but the corresponding provision with regard to basic pay in her comparators' contracts was less specific. It referred to a national agreement from which the rate of wages to be paid weekly in arrears was to be determined, and in accordance with which overtime payments were to be calculated. The House of Lords held that those provisions relating to basic pay were the relevant "terms" in each of the woman's and the men's contracts, but that - taking account of the hours to be worked in order to earn the money - the appropriate comparison was with the hourly rate of basic pay.

In Pointon v University of Sussex, by contrast, the Court of Appeal upheld an industrial tribunal's decision that no term of a woman's contract became less favourable to her than a term of a similar kind in her comparator's contract. In particular, her contract did not include a term entitling her, because she was older than her comparator, to have been appointed at a higher point on a salary scale than both she and then he were appointed. That "age wage norm" was an internal system for the guidance of appointing committees, and did not form part of the official appointing procedure.

In Barry v Midland Bank plc, a woman received a smaller voluntary severance payment, under or by reference to her contract of employment, than her two comparators each received after opting for redundancy. She had worked full time for 11 years and then part time for only two years, and both the comparators had always worked full time. But her severance payment was calculated solely on the basis of her part-time salary at the date of redundancy, while theirs were calculated on the basis of their full-time salaries at that date. The EAT upheld an industrial tribunal's decision that no term of her contract was less favourable to her than a term of a similar kind in the comparators' contracts.

The rules of the employer's scheme for calculating voluntary severance payments were not in themselves discriminatory, and they had not been applied to the woman in a discriminatory way. The same rules applied to both men and women, and to both full-time and part-time workers. In all cases, the calculation of the severance payment was made on the basis of salary at the date of redundancy. The woman would have had no complaint if she had always worked either full time or part time, or if she had switched from part-time working to working full time. Further, women like herself who had moved from full-time to part-time work were treated the same as men who had done so, and they were her proper comparators.

Transparency

The Equal Opportunities Commission's Code of Practice on Equal Pay¹ says: "A transparent pay system is one where employees understand not only their rate of pay but also the components of their individual pay packets and how each component of their individual pay packets contributes to total earnings in any pay period." The Code goes on to recommend that an employer should ensure, by carrying out a pay systems review, that any elements of a pay system which could contribute to differences in pay between employees are readily understood and free of sex bias. That review should involve the stages set out in the box on p.6 below.

Under the pay system at issue in Danfoss, the employer gave the same basic pay to workers in the same grade and awarded individual pay increases based on various criteria. But workers did not know what those criteria were or how they were applied. They were only told the amount of their increased pay, without being able to establish the effect that each of the criteria had had. Therefore, they could only establish a difference between average pay. The employer then had to show how it had applied the criteria, thereby making its pay system transparent.

In Calder and Cizakowsky v Rowntree Mackintosh Confectionery Ltd, an employer paid a shift premium to predominantly male full-time employees working rotating shifts, but not to exclusively female employees, who received the same basic rate, working a part-time evening shift. An element of the premium compensated for working unsocial hours, which both groups of employees worked, and the remainder was paid in respect of the inconvenience of working rotating shifts. Although employees could not identify how much of the premium was attributable to each factor, the Court of Appeal held that there was no lack of transparency. It was abundantly clear that the premium was payable to those employees (men and women) who worked rotating shifts, and the employer did not have to explain precisely how the premium figure was achieved.

EQUAL WORK

There can only be discrimination contrary to Article 119 between workers of different sexes if they carry out, if not the same work, at least work to which equal value is attributed (Royal Copenhagen). Article 1 of the EC Equal Pay Directive (No.75/117/EEC) ("the Directive" - see part 1, pp.4-5) explains that the concept of "same work" contained in Article 119 includes cases of "work to which equal value is attributed" (Worringham and Humphreys v Lloyds Bank Ltd).

It follows from the principle that equal work must be remunerated with equal pay that work performed must be remunerated according to its nature (Rummler v Dato-Druck GmbH). The concept of "same work" is entirely qualitative in character in that it is exclusively concerned with the nature of the services in question (Macarthys Ltd v Smith). Similarly, it is for the industrial tribunal to ascertain whether, in the light of the facts relating to the nature of the work carried out and the conditions in which it is carried out, equal value may be attributed to it (Royal Copenhagen).

A "job classification system" is, under the Directive, merely one of several methods for determining pay for work to which equal value is attributed. It is a means of determining the hierarchy of jobs in an organisation as the basis for a pay system (that is, of setting differentiated pay grades), but does not directly determine rates of pay. The term "job classification" appears to be used by the ECJ to include any technique which categorises jobs, whether it is formal or informal, analytical or non-analytical. The term covers both classification and evaluation, according to the European Commission's Memorandum on equal pay for work of equal value². It does not appear to be used in a technical sense.

Although Article 119 expressly requires the application of the principle of equal pay for men and women solely in cases of the same work or work of equal value, and not in the case of dissimilar work of unequal value, a woman may rely on Article 119 to obtain equal pay where she is doing work of higher value than that of her comparator but is receiving less pay than him (Murphy and others v Bord Telecom Eireann).

The concepts of "same work" and "work to which equal value is attributed" correspond to what the EqPA defines as, respectively, "like work" and "work rated as equivalent" or "work [otherwise] of equal value".

Meaning of "work"

In Manor Bakeries Ltd v Nazir, the EAT considered it to be obvious that, unless there is work, and pay for that work, Article 119 has no application. It felt obliged to ask what the employer was paying for, and in particular whether what the woman was doing could conceivably be described as "work". She and a male colleague were attending their trade union's annual conference as elected delegates; and this activity qualified for payment by the employer, under a recognition agreement, in respect of the hours worked by each employee's shift during his or her absence. They spent the same amount of time at the conference, but she was paid less than him because she was a part-timer and he worked full time.

There was no dispute that what the woman received was "pay" within the meaning of Article 119. What was in dispute was whether this was for "work" within the meaning of that Article. An industrial tribunal found that it was, but on appeal the EAT concluded that it was not. The EAT said: "... the idea that [the woman] might have been working for the employers and being paid for that work while she was at the annual conference appears positively fanciful. The employers had, of course, no control whatever of the work done at the conference and the hours spent on that work ... The distinction between work and pleasure on such occasions might be hard indeed to draw ..."

The EAT distinguished the ECJ's decision in Arbeiterwohlfahrt der Stadt Berlin eV v Bötel that statutory paid time off work for works council members to participate in relevant training courses constitutes "pay" within the meaning of Article 119. The EAT considered that the activities of works councils had little, if anything, in common with an independent trade union's annual conference, whether or not the union was recognised. It also thought that many trade unionists would be surprised to hear that the activities of their annual conference and the delegates attending it were, to quote the ECJ in Bötel, "encouraging the existence of a harmonious working relationship within and in the general interests of the undertaking [of their employer]."

The EAT's decision is, however, open to question. It had previously held, in relation to a claim under s.1(2)(a) of the EqPA, that women and their male comparator did not stop being employed on "like work" just because they were all on holiday (Sorbie and others v Trust House Forte Hotels Ltd). Even though none of them was working, they were all still "employed" within the meaning of s.1(6)(a) of the EqPA (see Equal pay 1: legal framework and preliminary issues).

Moreover, in Bötel, the ECJ said the paid time off in question was intended to ensure that works council members had a source of income even though, during the training courses, they did not perform any of their contractual obligations. The ECJ has also held that the continued payment of a worker's wages in the event of his or her incapacity to work because of illness is classified as "pay" (Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH & Co KG). Money is then paid without any direct benefit being received by the employer in return since, of course, the worker is not working. It follows that, in order for a benefit to constitute "pay", it need not be given by the employer to the worker as consideration for the performance of contractual obligations.

Like work

A woman who makes a claim under s.1(2)(a) of the EqPA - that she is employed on "like work" with her comparator but is, for example, paid less than him - must satisfy the test prescribed by s.1(4) of the EqPA, which provides:

A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly, in comparing her work with theirs, regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences.

The test imposed by s.1(4) requires the industrial tribunal to make a comparison between the work done by the woman and the work done by her comparator (Capper Pass Ltd v Lawton), regardless of any special personal skill or merit either of them may have (E Coomes (Holdings) Ltd v Shields).

In applying s.1(4), the tribunal must carry out a two-stage inquiry:

The woman must prove that she is employed on like work with her comparator, but if the answer to the first question is "yes" an evidential burden of showing differences of practical importance rests on the employer (Shields).

Practice not theory

At each stage of its inquiry, the tribunal must compare the work that the woman and her comparator actually do rather than their respective contractual obligations, except to the extent that those are enforced in practice. For example, if the woman and her comparator are doing work of a broadly similar nature, it is irrelevant in applying s.1(4) that he, unlike her, is under a contractual obligation to do some other work unless he in fact does so. Similarly, a difference between the duties which the woman and her comparator are under a contractual obligation to perform is not a difference of practical importance in relation to terms and conditions of employment unless it results in an actual difference in what is done in practice (Waddington; Shields).

In Shields, a female cashier in a betting shop claimed that she was employed on like work with a higher-paid man working alongside her. They did the same work at the shop counter, taking bets and paying out winnings, and the only significant difference between them was that the man filled a protective role. He was employed in the shop to deter trouble and, if trouble arose, to deal with it. But he had never in fact had to do so. Therefore, the Court of Appeal held, the difference in security function was not a difference of practical importance.

It follows that job titles or job descriptions may mean nothing at all, and even a job specification may mean very little (Dorothy Perkins Ltd v Dance and others). Employers should not be able to avoid a finding of like work by introducing comparatively small differences in job content between men and women, or by giving the work a different job description (Shields).

But, although the primary matter is what is done in practice, it is obviously necessary as a start to look at the contractual obligations of the woman and her comparator. It is also important to do so where their work is more or less identical but only one of them has some supervisory role, albeit that it is difficult to pinpoint actual acts done in performance of that obligation. And it is sufficient to do so in the absence of any other evidence to show that they in fact did anything different (Redland Roof Tiles Ltd v Harper).

Separate jobs

In ordinary circumstances, the tribunal must compare everything done by the woman with everything done by her comparator in the course of their respective employment; and, in principle, the woman has no warrant for excluding or hiving-off some part of her comparator's work. In exceptional cases, however, the tribunal may disregard such part of his work as is in effect a separate and distinct job. But it may not ignore some part of the work actually done on the ground that the remuneration attributable to such may be discounted (Maidment and Hardacre v Cooper & Co (Birmingham) Ltd).

In Maidment, a woman employed for about 90% of her time as a packer claimed that she was employed on like work with a man who also worked mainly as a packer. The rest of her time was taken up with clerical work, and for the remainder of his he worked as a storekeeper. His basic wage included an increment attributable to his work as a storekeeper, but the EAT held that this did not mean that his activities as such could properly be regarded as a separate occupation which could be ignored. Just as the woman might be described reasonably enough as a packer/clerk, so he could be described as a packer/storekeeper.

In Doncaster Education Authority v Gill, a school's female head of business studies claimed that she was employed on like work with her male counterpart at another school. He also had responsibilities as a house master and for vocational training. The EAT held that those were discernible separate activities, severable from his activities as head of business studies, which also accounted for the difference between his grade and the woman's grade.

Same or broadly similar nature

The nature of the work done by the woman and by her comparator does not have to be the same (for example, waiting at tables in the same restaurant). It need only be broadly similar (for example, assisting customers in different departments of the same department store). Whether it is or not is a question of fact for the tribunal, which should consider the matter in broad, general terms. It should not examine too minutely any differences in the work done which, set against the broad picture, fade into insignificance. Nor should it be constrained to find that work is not of a broadly similar nature merely because of insubstantial differences (Lawton; Shields; Dance).

The tribunal must compare the similarity of the nature of the work and of the skills and knowledge that are required to do it, not the similarity of the detailed tasks performed (which is relevant to the second stage of the two-stage inquiry required by s.1(4)). The fact that the results of the work are broadly similar is irrelevant: the proper comparison is between the processes by which those results are achieved (Waddington; Lawton; Dance).

Where the woman and her comparator do the same kind of work during part of the week, but only the woman continues to do that work for the rest of the week, the tribunal must see whether or not her comparator is then doing something which is so significantly different as to take the woman's work out of the area of broad similarity (Dance).

In Curry v Ableguard Security Services, the Northern Ireland Court of Appeal held that the work of two security guards of different sexes was not of a broadly similar nature. The only similarity was that the woman's work consisted mainly of conducting body searches on female employees leaving work, while a part of the man's work consisted of searching the handbags of those employees on their way in to work. The remainder of his work consisted of other general security duties.

Differences of practical importance

Only if the tribunal decides that the work done by the woman and by her comparator is of the same or a broadly similar nature must it go on to investigate any differences between the things they do. It must compare those differences so as to see their nature and extent, and the frequency or otherwise with which they occur in practice, and then decide whether or not they are of practical importance in relation to terms and conditions of employment (Dance; Shields).

The words "differences between the things she does and the things they do" in s.1(4) of the EqPA should not be strained beyond their natural and ordinary meaning. Where the differences between the woman and her comparator are not reflected in differences in things done (such as differences in their length of service or place of work), they must be considered only when determining whether the employer has made out a "material factor" defence under s.1(3) of the EqPA (Shields).

Although the most important consideration is what the woman and her comparator actually do, the tribunal should not disregard the circumstances in which they do it (Eaton Ltd v Nuttall) or the effect of what is done (British Leyland (UK) Ltd v Powell). The tribunal must also take a broad view of the differences between what is done by the woman, on the one hand, and her comparator, on the other, looking at what is done overall (Ford v R Weston (Chemists) Ltd).

In deciding whether the differences are of practical importance in relation to terms and conditions of employment, which is essentially a question of fact, the tribunal will be guided by the concluding words of s.1(4). But trivial differences, or differences not likely in the real world to be reflected in the terms and conditions of employment, ought to be disregarded. In other words, once it is determined that work is of a broadly similar nature, it should be regarded as being "like work" unless the differences are plainly of a kind which the tribunal in its experience would expect to find reflected in the terms and conditions of employment (Lawton; Shields).

In that regard, it would not be out of place for the tribunal to see whether the differences are such as to put the two jobs into different grades on a job evaluation study (Powell). Differences in the things done which justify differences in grading will prevent the two people's work from being "like work" (Capper Pass Ltd v Allan).

Additional or different duties

Where the woman and her comparator are doing work of the same or a broadly similar nature, but only he is contractually obliged (if so required) to do other work, he must in fact do so to some significant extent for such a difference to be one of practical importance in relation to terms and conditions of employment. In such a case, the tribunal must ask itself the following: What happens in practice? How often is the man required to do other work? On the occasions when he is so required, what kind of work does he do? To what extent is it different from the work that he does alongside the woman? (Electrolux Ltd v Hutchinson and others).

In Powell, a female van-driver claimed that she was employed on like work with a higher-paid male counterpart. The only significant difference between the things they did was that he occasionally had to drive outside the factory. But this did not amount to a difference of practical importance in relation to terms and conditions of employment: the journeys outside the factory were also short, and the extra responsibility involved in driving on the road was not sufficiently great.

Different degrees of responsibility

An obligation to supervise or to take responsibility, if it is discharged, is one of the "things" the woman and/or her comparator may "do" for the purposes of s.1(4). A difference in the degree of responsibility exercised by them may, therefore, be a difference between the things they do, even though it may be difficult to pinpoint precisely how they exercise their responsibility (Waddington). The tribunal must decide on the facts whether that difference, which may arise from the fact that the woman's comparator handles larger sums of money than she does, is sufficiently great to be a difference of practical importance in relation to terms and conditions of employment (Allan).

The tribunal must assess the degrees of responsibility exercised by the woman and her comparator even where on the face of it they do the same things, because those things may have very different consequences if badly done. The tribunal must, therefore, take into account the fact that a mistake made by the man would be likely to have far more serious consequences than one made by the woman. Further, where only one of them exercises responsibility, that difference might truly be decisive where it can be seen to put one into a different grade from the other. Such distinctions between two workers are often easy to spot in practice but difficult to distinguish only in terms of what each of them does (Nuttall).

Different times of work

The tribunal should disregard the mere time at which the work is done when considering the differences between the things the woman and her comparator do. The fact that they work at different times of the day is irrelevant if that is the only difference between what they do (Dugdale and others v Kraft Foods Ltd). A difference in their hours of work is also irrelevant for the purposes of s.1(4) (Shields). Article 119 says specifically that "pay for work at time rates shall be the same for the same job".

This does not mean, however, that the man cannot be paid extra for working at night, or longer hours, provided that the night-shift premium or overtime rate is assessed at a reasonable level (Shields). Further, working at a different time, particularly at night, may change the nature of the work or, more usually, bring with it extra responsibilities, although such cases need to be considered with care (National Coal Board v Sherwin and Spruce).

In Thomas and others v National Coal Board, the EAT upheld an industrial tribunal's decision that female canteen assistants were not employed on like work with a male canteen attendant on permanent night duty. The tribunal had to look at the circumstances in which the apparently similar work was done, and the circumstances of permanent night duty produced added responsibility which was a difference of practical importance in relation to terms and conditions of employment.

Work rated as equivalent

A woman who makes a claim under s.1(2)(b) of the EqPA - that she is employed on "work rated as equivalent" with that of her comparator but is, for example, paid less than him - must point to a JES satisfying the requirements of s.1(5) of the EqPA, which provides:

A woman is to be regarded as employed on work rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand under any heading.

The woman must show that there is in existence a "general" JES (that is, a JES undertaken of the jobs of all the employees, or of any group of employees, in an undertaking or group of undertakings) which was carried out with a view to evaluating the jobs of the employees covered by it "in terms of the demand made on a worker under various headings", and on which her job and that of her comparator:

A "heading", or "factor", is an element of a job which is defined and measurable, such as "effort" (that is, strenuous physical or mental exertion), "skill" (that is, the qualities needed to do the job rather than individual aptitude) or "decision" (that is, responsibility). These may in turn be divided into sub-factors which go into greater detail under a particular heading, such as manual dexterity under skill. The demands made by the jobs to be evaluated must always be assessed under whatever headings are adopted on a qualitative, not a quantitative, basis. Hours worked is, therefore, a factor which is outside the scope of a general JES (Leverton v Clwyd County Council).

The reference in s.1(5) to "the demand made on a worker under various headings" is an indication of how the JES which the woman relies on must be structured, but does not limit the scope of s.1(5). It is therefore necessary, in determining whether the JES evaluated the woman's and her comparator's jobs as equal, to look at its full results, including the way in which it converts numerical scores (corresponding to levels of demand under each of the selected headings) into salary grades. It is not sufficient merely to look at the results of the analysis that was actually made in the JES. It follows that, even if the JES has given the woman's job a lower value than her comparator's, her work will be rated as equivalent with his if the JES converts their overall scores into the same salary grade (Springboard Sunderland Trust v Robson).

In general, unless there is a fundamental error in the JES, its evaluation of the woman's job and that of her comparator is conclusive (subject to any internal right of appeal). The tribunal must act on the JES's conclusions, and can in no circumstances carry out a JES of its own (Greene and others v Broxtowe District Council). The woman must also take the JES as it is, and her claim will stand or fall on it if it is the only one which exists. She cannot base her claim on the footing that, had the JES been carried out differently from the way in which it was in fact carried out, her job and that of her comparator would have been given an equal value (England v London Borough of Bromley).

If, however, the woman can rely on the JES in other respects (see below), the absence of a merit assessment scheme cannot prevent her from doing so. Such a scheme is not a necessary part of a JES (O'Brien).

JES must be "objective"

In Eaton Ltd v Nuttall, the EAT said s.1(5) can only apply to a "valid" JES. By that, the EAT meant a JES "satisfying the test of being thorough in analysis and capable of impartial application." A JES which does not satisfy that test, and requires the management to make a subjective judgment concerning the nature of the work before the worker can be fitted in to the appropriate place in the appropriate salary grade, would not be a "valid" one.

The ECJ's decision in Rummler v Dato-Druck GmbH also makes it clear that the consideration of any job, and of the qualities needed to do that job, under a JES must be objective. The ECJ said the nature of the work to be done must be considered objectively. It added that the use of a factor which takes account of the objectively measurable level of physical strength needed to do the job is compatible with the Directive if the work, by its nature, does require physical exertion.

One has to be a little careful, however, in considering what is meant by "objective" since there are no universally accepted external criteria available for measuring how much of a factor is involved in a particular job, or for measuring what relative weights ought to be attached to different factors involved, to differing extents, in various jobs. Every attempt at job evaluation will inevitably at some stages involve value judgments, which are inherently to some extent subjective or "felt fair" (that is, in line with the general level of expectation as to the value of the job). It must follow that, within measure, there may be subjective elements in an objective process (Bromley and others v H & J Quick Ltd).

The attribution of value to work on a JES is not an exact science. Such studies are entered into with a view to establishing objective criteria, but jobs vary very greatly; and it is difficult to find any formula which in all circumstances will properly evaluate the content of the job. Therefore, however carefully a JES is undertaken and conducted, there is always a substantial risk that its results may offend common sense and be unacceptable to those whose relationship it is designed to regulate (Arnold v Beecham Group Ltd).

JES must be "analytical"

To comply with s.1(5), a JES must also be "analytical" (see the box on p.9). That word indicates conveniently the general nature of what is required by s.1(5), namely that the jobs of each worker covered by it must have been evaluated in terms of the demands made on the worker under such headings as effort, skill and decision. Provided that the woman's and her comparator's jobs are so evaluated, it is not necessary to have a written job description for each of them (Bromley).

On the JES at issue in Bromley, a number of benchmark jobs were ranked in order of importance by means of "paired comparisons" on a "whole-job" basis (that is, comparing each job as a whole with each of the other jobs). The jobs were also separately ranked by means of "points assessment" (see the box at right). The order of ranking was then adjusted on a felt-fair basis, in order to correct what were perceived to be obvious anomalies. Finally, all the other jobs, including those of the female claimants and their male comparators, were slotted into the order of ranking of the benchmark jobs on a whole-job basis.

The Court of Appeal had to decide whether the procedures followed in the JES satisfied the requirements of s.1(5). The good intentions of the parties to the JES were, therefore, of relatively minor importance. It seemed to Lord Justice Dillon that all the paired comparisons were to be regarded as having been objective, even though each involved a value judgment as between the two jobs being compared. It also seemed to him to be only sense, at the end of a calculation, to take an overall look at the result to see if it looks right and to make any necessary adjustments. The making of such adjustments are an ancillary part of the JES and do not automatically make it one which does not comply with s.1(5).

But none of the women's or their comparators' jobs was ever evaluated in terms of the demands made on them under the selected headings. Accordingly, the Court of Appeal held that there had never been a JES satisfying the requirements of s.1(5) in relation to any of the women or their comparators. It was not enough that the benchmark jobs were evaluated, if indeed they were, on the factor-demand basis required by s.1(5) if, as was the case, the jobs of the women and their comparators were not.

JES must be "complete"

Where the jobs of the woman and her comparator have been evaluated as equal on an objective, analytical JES, but the employer has not implemented it (in the sense that neither the woman nor her comparator have been paid in accordance with it), the woman may not rely on the JES unless and until the parties who agreed to carry it out have accepted its validity (Arnold). Whether one describes the JES as being "accepted", "adopted" or "in force", a woman who relies on it must show that it is one which it is reasonable to regard as governing her situation and that of her comparator at the relevant time (England).

JES must be "applicable"

A JES within the meaning of s.1(5) of the EqPA does not apply to employees unless they are employed in the undertaking or group of undertakings in respect of which it was carried out. Section 1(5) relates to a woman employed at an "establishment in Great Britain" (see part one, pp.6-7), and to a JES undertaken in relation to employees employed at such an establishment. Such a study cannot, therefore, be said to cover employees employed at establishments in Northern Ireland, who are subject to the Equal Pay Act (Northern Ireland) 1970 rather than the EqPA (McAuley and others v Eastern Health and Social Services Board).

Work of equal value

Section 1(2)(c) of the EqPA enables a woman to claim that her work is of equal value to that of her comparator where her employer has refused to carry out a general JES. A woman who makes a claim under s.1(2)(c) (an "equal value" claim) must show that she is employed on work which is, "in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value" to that of her comparator.

Section 2A of the EqPA lays down a special procedure to be followed by industrial tribunals in determining equal value claims (see below). The detailed rules of procedure, some of which we refer to below, are contained in Schedule 2 to the Industrial Tribunals (Constitution and Procedure) Regulations 1993³. These are complementary to the rules contained in Schedule 1 to those Regulations.

Initial hearing

On any equal value claim, there must be an initial hearing before an industrial tribunal at which the tribunal must first consider whether the woman is employed on like work with her comparator or work rated as equivalent with his (Pickstone). If she is not, the tribunal must invite the parties to apply for an adjournment in order to try and settle the claim; and the tribunal must grant such an adjournment if all the parties agree (rule 13(6A)). Otherwise, or if no settlement is reached:

(a)the tribunal may itself determine whether the work of the woman and that of her comparator is of equal value, or

(b)unless the tribunal is satisfied "that there are no reasonable grounds for determining that the work is of equal value", it must require a member of the panel of independent experts (designated by ACAS or, in Northern Ireland, the Labour Relations Agency) "to prepare a report with respect to that question" (s.2A(1)).

There are no reasonable grounds for determining that the work is of equal value if the jobs of the woman and her comparator have been evaluated as unequal on a general JES satisfying the requirements of s.1(5) of the EqPA (see above) which is not itself discriminatory (see our next Guidance Note), or if the claim is "hopeless".

Generally speaking, only if the woman's job and that of her comparator are manifestly not comparable should the claim be considered hopeless. If there is any doubt about whether the work is of equal value, it must be resolved in the woman's favour⁴. But if the woman has selected as her comparators one man who earns £X and another who earns £2X, she can hardly complain if the tribunal concludes that her claim of equality with the first man itself demonstrated that there were no reasonable grounds for her claim of equality with the second (Leverton).

The tribunal may not commission an independent expert's report before giving the parties an opportunity to make representations as to whether it should (rule 8A(2)), or before deciding whether the claim is hopeless (Sheffield Metropolitan District Council v Siberry and Smith). If it is satisfied that the claim is hopeless, then it must dismiss the claim. Otherwise, it must refer the claim to an independent expert; and it cannot then determine the claim before it has received the expert's report (s.2A(1)).

The tribunal may not dismiss the claim as hopeless on the basis that the woman's originating application (IT1) does not disclose a prima facie case. Such a defect may be cured by the evidence of, for example, her expert witness. The tribunal must allow such evidence to be given, set that evidence against the rest, and then ask itself whether, looking at the matter in the round, there was no reasonable basis for a claim (Dennehy v Sealink UK Ltd).

Reference to independent expert

Where the tribunal requires an independent expert to prepare a report, it must adjourn the hearing (rule 8A(6)); and any such requirement must be made in accordance with detailed stipulations set out in rule 8A(4) and (5). The preparation of the report and the subsequent procedural steps following its presentation involve a lengthy, elaborate and expensive process (Leverton).

The independent expert must carry out what is, in effect, an "ad hoc" JES as between the woman and each of her comparators (Leverton). In common with a general JES under s.1(5) of the EqPA (see above), the work must be evaluated "analytically", "in terms of the demands made on the person employed on the work" (rule 8A(1)) under whatever headings are adopted on a qualitative, not a quantitative, basis (Leverton).

The independent expert appointed in Hayward v Cammell Laird Shipbuilders Ltd used a variant of the factor comparison method (see the box on p.9) which he himself devised. He assessed the demands made by the jobs being compared as "low", "moderate" or "high" under the headings of physical demands, environmental demands, planning and decision-making, skill and knowledge required, and responsibility. An industrial tribunal found that method to be adequate for its particular purpose, even though it dealt with the matter in relatively broad terms. Only if the tribunal had considered that the expert had gone badly wrong would it have felt justified in interfering.

The independent expert may apply to the tribunal for an order: (a) requiring anyone who the tribunal is satisfied may have information relevant to the question of whether the work is of equal value to furnish in writing such information as the tribunal requires; (b) requiring anyone to produce documents which are in his or her possession, custody or power, and which the tribunal is satisfied may contain matter relevant to that question (rule 4(2A)). The tribunal may also make such an order on a party's application, under its general discretion to regulate its own procedure (see rules 9(1), 13(1) and 16(1)).

The parties may commission their own experts to prepare a report, and they may make representations to the independent expert on the material contained in his or her report before he or she draws it up (rule 8A(5)(b)). The tribunal also has power, under its general discretion, to order the employer to afford both the woman's expert and the independent expert access to her and her comparators' workplaces.

The parties normally exchange information voluntarily, and allow themselves to be interviewed or cross-examined by each other's expert. But, if they do not, the tribunal has no power to require them to do so. Where an interview is requested but refused, the party seeking it must set out - in the form of interrogatories - the specific matters about which it requires information, and apply to the tribunal for an order requiring the other party to answer them (Lloyds Bank plc v Fox and others).

Once the tribunal has received the independent expert's report, it must send a copy to each party and fix a date for the hearing of the claim to be resumed (rule 8A(11)). It may also require the independent expert to explain any matter contained in his or her report, or to give further consideration to the question with respect to which he or she was required to prepare the report, setting down any conclusion which may result from that and his or her reasons (rule 8A(15) and (16)). A copy of any such reply must also be sent to each party, who may make representations on it and to which the tribunal will give such weight as it sees fit (rule 8A(17)).

Resumed hearing

At the resumed hearing, the tribunal must decide whether or not to admit the independent expert's report in evidence (rule 8A(12)). It may not reject the report simply because it disagrees with the conclusion, or with the reasoning leading to that conclusion; and it must admit the report unless it forms the view that:

(a)the expert did not comply with a stipulation in rule 8A(5) (for example, that he or she did not at all times "act fairly"); or

(b)the report's conclusion is "perverse" (that is, one which, taking due account of the information supplied and representations made to the expert, could not reasonably have been reached); or

(c)the report is unsatisfactory for some other material reason.

If the tribunal rejects the report, it must commission another one by a different independent expert (rule 8A(13)) and no further account may be taken of the rejected report (rule 8A(18)).

Before it makes up its mind, however, the tribunal must take account of any representations made by the parties. It may also, and must on a party's application, allow the parties to cross-examine the independent expert on his or her report and any other matter pertaining to the question on which he or she was required to report (rule 9(2A)). The parties may also call one expert witness apiece to give expert evidence on that question, and they may be cross-examined on their evidence (rule 9(2B)). Subject to that, the tribunal may allow the parties to give evidence, and to call and question any witness, on any matter relevant to the admissibility of the report (rule 8A(14)).

Not all the relevant facts have to be contained in the independent expert's report for it to be admissible. The tribunal is also entitled to take into account the expert's oral evidence in deciding whether or not to admit the report (Aldridge v British Telecommunications plc).

If the tribunal does not reject the report, then it is admitted in evidence. No party may then give evidence, or question any witness, on any matter of fact on which the report's conclusion is based (rule 9(2C)), unless the matter relates to the employer's "material factor" defence (see our next Guidance Note) or the report contains no conclusion due to a person's refusal or deliberate omission to comply with an order made under rule 4(2A) (see above).

Rule 9(2C) does not prevent the tribunal, before reaching its conclusion, from taking into account other evidence in addition to the evidence contained in the independent expert's report and given orally by him or her (Aldridge). But, once the report has been admitted in evidence, the employer cannot call evidence the object of which is to controvert the independent expert's findings of fact as to, for example, the working conditions of the woman and her comparator. The most effective, but not the only, way of mounting any attack on the report is for the employer to commission and present one of its own. The tribunal will then be faced with a divergence of findings between which it will have to choose, and give its reasons for so doing (Hayward).

Once admitted, the independent expert's report carries considerable weight but has no special status. Unlike the conclusion of a general JES, the report's conclusion is not binding on the tribunal (Tennants Textile Colours Ltd v Todd). An independent expert has no greater standing as an expert than an expert witness called by either party. Each witness and his or her assessment must be tested in evidence. In the outcome, the tribunal may prefer the evidence of any one or more to the rejection of others (Dibro Ltd v Hore and others).

The independent expert's report is simply evidence on the question of the value of the work. It is for the tribunal to decide what weight to attach to all the evidence, and ultimately to decide the issue4. That is whether, when the woman presented her IT1, the job being done by her at that time was of equal value to the job being done by her comparator at that time (Hore). The burden of proof remains on the woman irrespective of the report's conclusion. It does not become heavier if the report is against her, nor does it transfer to the employer if the report is in her favour (Todd).

Some tribunals have interpreted "equal" strictly, to mean not less than 100% equivalence (that is, the value of the woman's work must be precisely the same as or higher than her comparator's). Others have interpreted "equal" broadly, to mean approximately equal, so that a woman whose work is given nearly the same value as that of her comparator can nevertheless be employed on work of equal value to his. In Pickstone and others v Freemans plc (No.2), an industrial tribunal decided that the work of two women was of equal value to their comparator's despite the independent expert's conclusion that they each scored three points fewer overall than him in the evaluation. But it rejected the women's submission that, as a "rule of thumb", work should be regarded as of equal value where the difference in overall scores is within a range of 15%.

References

¹ ISBN 1 870358 64 3, available free of charge from the EOC's Marketing and Communications Department, tel: 0161 833 9244.

² COM(94) 6 final, 23.6.94, ISBN 92 77 64323 4.

³ SI 1993/2687. Their counterparts applying in Scotland and in Northern Ireland are, respectively, the Industrial Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993 SI No.2688 and the Industrial Tribunals (Rules of Procedure) Regulations (Northern Ireland) 1991 SR No.188.

⁴ Hansard (HL), 5.12.83, cols. 924 and 926.

Equal pay 2: main points to note

What is "pay"?

The concept of "pay" within the meaning of Article 119 includes the following:

The House of Lords has asked the ECJ to rule⁸ on whether an award of compensation for unfair dismissal constitutes "pay" within the meaning of Article 119 (R v Secretary of State for Employment, ex parte Seymour-Smith and Perez).

⁵ COM(94) 6 final, 23.6.94, ISBN 92 77 64323 4.

⁶ State earnings-related pension scheme.

⁷ Additional voluntary contributions.

⁸ No hearing date has yet been fixed.

Pay systems review

The EOC's Code of Practice on Equal Pay recommends that a pay systems review should involve the following stages:

1.Undertake a thorough analysis of the pay system to produce a breakdown of all employees - which covers, for example, sex, job title, grade, whether part-time or full-time - with basic pay, performance ratings and all other elements of remuneration.

2.Examine each element of the pay system against the data obtained at stage 1.

3.Identify any elements of the pay system which the review indicates may be the source of any discrimination⁹.

4.In consultation with employees, trade unions or staff representatives where appropriate, change any rules or practices, including those in collective agreements, which stages 1 to 3 have identified as likely to give rise to discrimination in pay. In addition, address any practices and procedures in relation to recruitment, selection and access to training which stages 1 to 3 have revealed as having contributed to discrimination in pay.

5.Analyse the likely effects of any proposed change in practice to the pay system before implementing it, so as to identify and rectify any discrimination which could be caused.

6.Give equal pay to current employees. Where the review shows that some employees are not receiving equal pay for equal work, and the reasons cannot be shown to be free of sex bias, develop a plan for dealing with this.

7.Set up a system of regular monitoring to allow checks to be made to pay practices.

8.Draw up and publish an equal pay policy with provision for assessing the new pay system or modification to a system in terms of sex discrimination. Also, in the interests of transparency, provide pay information which is clear and easy to understand.

The European Commission's analogous Code of Practice¹⁰ recommends the analysis of a pay structure in three phases: (i) collecting relevant information about workers and pay arrangements; (ii) drawing up a general table showing the sex and pay of workers; and (iii) analysing those pay practices identified as potentially discriminatory, in order to ensure that they are objectively justified. Thereafter, follow-up action should be taken, after evaluating its implications, to eliminate all forms of sex discrimination detected in the pay structure.

⁹ Some of the more common pay elements, with examples of facts which could indicate problems of discrimination in pay, will appear in our next Guidance Note, together with suggestions of further questions to be asked to reveal the cause of the pay difference and whether it can be shown to be free of sex bias.

¹⁰ COM(96) 336 final, 17.7.96, ISBN 92 78 06073 9.

Analytical methods of job evaluation

Points assessment

This is the most common system in use. Instead of comparing whole jobs, it breaks down each job into a number of factors - for example, skills, responsibility, physical and mental requirements and working conditions. Each of these factors may be analysed further. Points are awarded for each factor according to a predetermined scale and the total points decide a job's place in the ranking order. Usually, the factors are weighted so that, for example, more or less weight may be given to hard physical conditions or a high degree of skill.

Factor comparison

This method employs the same principles as points assessment but uses only a limited number of factors, such as skill, responsibility and working conditions. A number of "key" jobs are selected because their wage rates are generally agreed to be "fair". The proportion of the total wage attributable to each factor is then decided and a scale produced showing the rate for each factor of each key job. The other jobs are then compared with this scale, factor by factor, so that a rate is finally obtained for each factor of each job. The total pay for each job is reached by adding together the rates for its individual factors.

CASE LIST

Aldridge v British Telecommunications plc [1990] IRLR 10

Arbeiterwohlfahrt der Stadt Berlin eV v Bötel [1992] IRLR 423

Arnold v Beecham Group Ltd [1982] IRLR 307

Barber v Guardian Royal Exchange Assurance Group [1990] IRLR 240

Barry v Midland Bank plc [1997] ICR 192

Bestuur van het Algemeen Burgerlijk Pensioenfonds v Beune [1995] IRLR 103

Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317

British Leyland (UK) Ltd v Powell [1978] IRLR 57

British Road Services Ltd v Loughran and others [1997] IRLR 92

Bromley and others v H & J Quick Ltd [1988] IRLR 249

Burton v British Railways Board [1982] IRLR 116

Calder and Cizakowsky v Rowntree Mackintosh Confectionery Ltd [1993] IRLR 212

Capper Pass Ltd v Allan [1980] IRLR 236

Capper Pass Ltd v Lawton [1976] IRLR 366

Coloroll Pension Trustees Ltd v Russell and others [1994] IRLR 586

Coomes (E) (Holdings) Ltd v Shields [1978] IRLR 263

Curry v Ableguard Security Services 21.12.82 Northern Ireland Court of Appeal

Defrenne v SABENA (No.3) [1978] ECR 1365

Dennehy v Sealink UK Ltd [1987] IRLR 120

Dibro Ltd v Hore and others [1990] IRLR 129

Doncaster Education Authority v Gill 24.3.92 EAT 568/89

Dorothy Perkins Ltd v Dance and others [1977] IRLR 226

Dugdale and others v Kraft Foods Ltd [1976] IRLR 368

Eaton Ltd v Nuttall [1977] IRLR 71

Electrolux Ltd v Hutchinson and others [1976] IRLR 410

Enderby v Frenchay Health Authority and Secretary of State for Health [1993] IRLR 591

England v London Borough of Bromley [1978] ICR 1

Ford v R Weston (Chemists) Ltd 21.4.77 EAT 684/76

Garland v British Rail Engineering Ltd [1982] IRLR 111

Gillespie and others v Northern Health and Social Services Board and others [1996] IRLR 214

Greene and others v Broxtowe District Council [1977] IRLR 34

Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss [1989] IRLR 532

Hayward v Cammell Laird Shipbuilders Ltd [1984] IRLR 463

Hayward v Cammell Laird Shipbuilders Ltd (No.2) [1988] IRLR 257

Leverton v Clwyd County Council [1989] IRLR 28

Lloyds Bank plc v Fox and others [1989] IRLR 103

Macarthys Ltd v Smith [1980] IRLR 210

McAuley and others v Eastern Health and Social Services Board [1991] IRLR 467

Maidment and Hardacre v Cooper & Co (Birmingham) Ltd [1978] IRLR 462

Manor Bakeries Ltd v Nazir [1996] IRLR 604

Murphy and others v Bord Telecom Eireann [1988] IRLR 267

National Coal Board v Sherwin and Spruce [1978] IRLR 122

Neath v Hugh Steeper Ltd [1994] IRLR 91

O'Brien and others v Sim-Chem Ltd [1980] IRLR 373 and [1978] IRLR 398

Pickstone and others v Freemans plc [1988] IRLR 357

Pickstone and others v Freemans plc (No.2) 8.2.93, Bedford industrial tribunal, case nos. 28811/84 and others

Pointon v University of Sussex [1979] IRLR 119

R v Secretary of State for Employment, ex parte Seymour-Smith and Perez [1997] IRLR 315

Redland Roof Tiles Ltd v Harper [1977] ICR 349

Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH & Co KG [1989] IRLR 493

Rummler v Dato-Druck GmbH [1987] IRLR 32

Sheffield Metropolitan District Council v Siberry and Smith [1989] ICR 208

Sorbie and others v Trust House Forte Hotels Ltd [1976] IRLR 371

Specialarbejderforbundet i Danmark v Dansk Industri, acting for Royal Copenhagen A/S [1995] IRLR 648

Springboard Sunderland Trust v Robson [1992] IRLR 261

Stadt Lengerich and others v Helmig and others [1995] IRLR 216

Tennants Textile Colours Ltd v Todd [1989] IRLR 3

Thomas and others v National Coal Board [1987] IRLR 451

Waddington v Leicester Council for Voluntary Services [1977] IRLR 32

Worringham and Humphreys v Lloyds Bank Ltd [1981] IRLR 178