Comparators 


The person the woman compares herself with is called a comparator and must be a man (or men) in the same employment. Normally, but not always, the comparator is at the same physical workplace. It is helpful to choose a comparator whose circumstances are most similar to your own, to reduce the chances that the pay difference can be explained by factors other than sex. There is no need to identify the man by name at the outset. 


If a comparator changes job, the woman can continue to use him as a comparator in her equal pay claim, relying on his salary frozen just before the change of job (Reading Borough Council v James [2018] UKEAT/0222/17). 




An employee can choose her own comparator and she can choose more than one, as long as they are engaged in “the same employment” (section 79, EA 10). They need not both be employed over the same time period (section 64(2), EA 10), so there is nothing in law to stop a woman using a comparator who has left the organisation (although there may be practical problems relating to evidence gathering and so on). 





After a TUPE transfer, a transferring employee can compare herself with a comparator whose employment did not transfer. However, any claim against a transferee based on unequal pay before the transfer must be brought within six months of the transfer date, or else it will be out of time (Gutridge v Sodhexo [2009] IRLR 72).


A woman cannot compare herself with a successor to her post, since the comparison process must involve a “concrete appraisal” of work actually performed (Walton Centre for Neurology and Neurosurgery NHS Trust v Bewley [2008] ICR 1047).





In Allonby v Accrington & Rossendale College [2004] ICR 1 328, the ECJ ruled that a female agency worker could not compare her pay to that of a directly employed male colleague. (Currently, a qualifying agency worker has separate equal pay rights under the Agency Worker Regulations 2010, see Chapter 2). 





The fact that some men are doing the same work as women for the same pay will not prevent an equal value claim by the women, comparing their jobs with the jobs of other better-paid male workers (Pickstone v Freemans [1988] IRLR 357). In Home Office v Bailey and others [2005] IRLR 369, the Court of Appeal ruled that female support officers could bring an equal pay claim using male governors as comparators even though about 50% of support officers were male.
If this kind of claim succeeds, the low-paid men who do the same job as the women can also claim the higher rate, known as “piggy-backing”. An example would be male shop workers in a claim comparing mainly female shopworkers with higher paid, mainly male warehouse staff, such as the ongoing retail claims against Asda, Tesco and Sainsbury’s. 




Where a woman has evidence of direct (but not indirect) sex discrimination in relation to her pay but there is no actual comparator doing equal work (so that the sex equality clause cannot operate) she can claim direct sex discrimination based on a hypothetical comparator (section 71, EA 10). The following example is taken from the EHRC Code of Practice:





A woman has to identify a man “in the same employment” doing equal work to bring an equal pay claim. Section 79, EA 10 says that a woman can compare herself with a man employed:





• by the same employer at the same establishment or workplace; 



• by the same employer at a different establishment or workplace, where common terms and conditions generally apply, for example, at another branch of a store; or





• by an associated employer, for example, a subsidiary. 





EU law also allows a woman to compare herself to a man who is not in the same employment, as long as the difference in pay is attributable to a single source with the power to rectify discriminatory pay differences (Beddoes v Birmingham City Council [2010] UKEAT 0056/10/0905, Glasgow City Council v UNISON [2014] IRLR 532). 




This was applied recently in the case of Asda Stores v Brierley & Ors [2019] EWCA Civ 44, supported by the GMB. The Court of Appeal has confirmed that around 30,000 Asda store workers (mainly women) can compare themselves with higher paid Asda distribution workers based at depots. The single source identified as capable of rectifying the discrimination is the parent company, Walmart, who could change the pay arrangements for both groups of workers “at the stroke of a pen, or more likely the click of a mouse”. 



As long as there is a “single source” of pay decision-making, an employee can be a valid comparator even if their pay is worked out in a different way. For example, the Asda distribution workers’ pay is negotiated through collective bargaining, whereas the women’s pay is imposed top down by the Asda board without negotiation. This difference did not stop the men being appropriate comparators in the Asda litigation.


There is no definition of “establishment” in the EA 10, but it is not restricted to a single physical location. “Same establishment” broadly means the same place of work (City of Edinburgh Council v Wilkinson [2012] IRLR 202).


If there is no appropriate comparator at the same establishment, EU law allows a hypothetical comparator to be used (Dumfries & Galloway Council v North [2013] UKSC 45). 




https://www.equalityhumanrights.com/sites/default/files/employercode.pdf