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What is equal work?
[ch 7: pages 260-261]There are three categories of equal work (Section 65, EA 10). Equal work is:
• like work: where the woman’s work is the same as or broadly similar to that of the man and any differences are not of practical importance;
• work rated as equivalent: where the woman Is not doing like work, but a valid job evaluation study has rated her job as equivalent to a man’s in terms of job demands, looking at factors such as effort, skills and decision making; or
• work of equal value: where two jobs are different and no job evaluation study has been conducted, a tribunal can decide that they are of equal worth after analysing the job demands, such as training and skills, conditions of work and responsibility levels.
The Equal Pay Statutory Code of Practice, available from the website of the EHRC, contains worked examples under each category.
The “work rated as equivalent” and “work of equal value” categories of claim are designed to target systemic pay discrimination that results from occupational segregation. Stereotypically “women’s work” such as cleaning, catering, retail and childcare is associated with low pay, while “men’s work”, such as warehouse or distribution work, or refuse collection is associated with higher pay. This difference lies behind a number of important ongoing equal pay claims in the retail sector. Thousands of female shop workers in Asda, Tesco and Sainsbury’s are pursuing tribunal claims for equal pay, comparing themselves with higher-paid male jobs in distribution warehouses (see page 263).
A valid job evaluation study (JES) that concludes that work is not equivalent can prevent a tribunal claim, but only if the scheme is “thorough in analysis” and “capable of impartial application” (Diageo v Thomson [2004] EAT/0064/03/2904). A JES that is discriminatory, or influenced by gender-stereotypical assumptions, can be successfully challenged. Here is a good example:
Supported by the UNISON and GMB unions, 6,000 female staff brought successful equal pay claims against Glasgow City Council because transitional pay protection measures introduced following a JES discriminated against women. Bonuses paid to male manual workers were “red circled” (preserved) for three years to cushion them against lost pay resulting from job evaluation, but the women’s pay was “green-circled”. They were not offered pay protection, because they had never been paid bonuses in the first place, due to historic sex discrimination. The Scottish Court of Sessions ruled that the decision to exclude the women from pay protection could not be justified and was unlawful.
The Council decided not to appeal against this ruling and instead opted to settle all historical claims. However, it took strike action by more than 8,000 council workers for the parties to reach an agreement in principle in January 2019. The final settlement package was valued in excess of £500 million.
Glasgow City Council v UNISON claimants and others [2017] CSIH 34
Any transitional measures that aim to fix past discrimination (such as pay protection) must be genuinely necessary. They must represent the least discriminatory option and must go no further than necessary to achieve a new non-discriminatory pay system (Glasgow City Council v UNISON claimants and others [2017] CSIH 34, Naeem v Secretary of State for Justice [2017] UKSC 27).
It is the employer’s responsibility to prove that a JES is objective and fair, because the employer has all the knowledge about its design, while the claimants have none. The employer should be able to point to an audit trail that shows how and why pay decisions were taken (Armstrong & Others v Glasgow City Council [2017] CSIH 56).