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What is equal work?
[ch 7: pages 248-249]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. It is for the employer to point to differences of practical importance. They could include, for example, different duties, responsibility level, qualifications, training, physical effort and so on. They must be genuine differences, rather than just appearing on the job description;
• 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. These claims are governed by a special set of rules — the Employment Tribunal Equal Value Rules of Procedure, (Schedule 3 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013).
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 target systemic pay discrimination that results from occupational segregation. Stereotypical “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 spate of private sector equal pay claims in the retail sector. Thousands of female shop workers in Asda, Tesco and Sainsbury’s are currently pursuing tribunal claims for equal pay comparing themselves with higher-paid male jobs in the supermarkets’ distribution warehouses.
A valid job evaluation study (JES) concluding 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:
Supported by unions UNISON and the GMB, 6,000 female staff brought successful equal pay claims against Glasgow City Council because transitory 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.
Glasgow City Council v UNISON claimants and others [2017] CSIH 34
Where a pay scheme is in transition to try to fix past discrimination, the tribunal must consider any alternative proposals that were suggested, to ensure that the chosen solution, for example, pay protection, is the least discriminatory. Transitional measures must go no further than necessary to achieve a new non-discriminatory system (Naeem v Secretary of State for Justice [2017] UKSC 27).
It is the employer’s responsibility to prove that a JES is objective, analytical and fair. This is because the employer has all the knowledge about its design, while the claimants have none. The employer should have an audit trail showing how pay decisions were taken and why (Armstrong & Others v Glasgow City Council [2017] CSIH 56).