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) along with 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 whether or not to pay and also the amount to pay, a claimant should bring a claim under the ordinary sex discrimination provisions of the EA 10 (Hosso v European Credit Management [2012] ICR 547).

The ordinary sex discrimination provisions (section 11 EA 10) 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).

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 (St Helens & Knowsley Hospitals NHS Trusts v Brownhill [2011] EWCA Civ 903).