What terms are covered by the sex equality clause?

The equality clause applies to all contract terms, not just wages. It includes, for example, the right to sick pay, bonus payments, overtime, shift payments, paid annual leave, mortgage interest allowance and special retirement privileges (such as travel concessions, pensions and redundancy pay) and any non-monetary contractual benefits such as the right to a company car or access to sports and social benefits.

Discretionary bonuses may be covered by the equality clause, but this depends on the way the discretion is framed. In Hoyland v Asda Stores Limited [2005] IRLR 438, the Court of Session decided that a discretionary Christmas bonus was covered by the EPA 70 (now the EA 10) as long as the discretion was as to how much was to be paid to all employees each year, as opposed to whether to pay a bonus at all. Where a discretion is wholly non-contractual, giving the employer freedom to decide both whether to pay and how much, a claimant should bring a claim under the ordinary sex discrimination provisions of the Act (Hosso v European Credit Management [2012] ICR 547).

Ordinary sex discrimination provisions also apply to other non-contractual benefits such as promotions, transfers and training and offers of employment or appointments to office (ECHR Code of Practice para 8.70). The intention behind the framework of the EA 10 is for the right to equal pay to “dovetail” with the general right not to be subjected to sex discrimination, so that the two are mutually exclusive.

Each term in the employment contract stands separately. In other words, an employer cannot justify one unequal term by saying that an employee benefited under another different term, or that taken together, the overall package is better than that of an equivalent man as illustrated by the following case which came about after the implementation of the NHS Agenda for Change job evaluation: