Sex equality clause 





The EA 10 operates by automatically implying a sex equality clause into every contract of employment entitling the employee to equal pay (section 66, EA 10). Its effect is that where a woman can show that she is being paid less than a man in the same employment for doing equal work and the employer cannot show that the difference is due to a material factor unrelated to sex, her pay and contract terms will be levelled up to those of the man. 





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





Discretionary bonuses are likely to be covered by the sex equality clause if there is a contractual right to a bonus but there is discretion over how much to pay (Hoyland v Asda Stores Limited [2005] IRLR 438). By contrast, where the employer is free to decide whether to pay any bonus at all (that is, a non-contractual bonus), any claim must be for sex discrimination (section 13, EA 10), not equal pay (Hosso v European Credit Management [2012] ICR 547). The same goes for any other non-contractual benefits such as promotions, transfers, training and offers of employment or appointments to office (ECHR Code of Practice, para 8.70). 





Each contract term stands separately. This means that an employer cannot justify one unequal term by saying that an employee benefited under a different term, or that taken together, the overall package is better than that of an equivalent man (St Helens & Knowsley Hospitals NHS Trusts v Brownhill [2011] EWCA Civ 903).



Women who are transferred to alternative work for health reasons during pregnancy cannot pursue an equal pay claim for that alternative work. Similarly, men cannot claim equal pay for any extra lump sum or loyalty bonuses paid to women on maternity leave (Abdoulaye v Renault [1999] IRLR 811).