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What is equal work?
[ch 7: page 270]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 a question of looking at the facts of each case. It is for the employer to point to differences and to show that they are of practical importance. They could include, for example, differences of 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, including, for example, 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).
A valid job evaluation study concluding that work is not equivalent may 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). If the scheme is discriminatory, or influenced by gender-stereotypical assumptions, it can be challenged.
The Equal Pay Statutory Code of Practice, available from the website of the EHRC (https://www.equalityhumanrights.com/sites/default/files/equalpaycode.pdf), contains worked examples under each category.
Important equal pay ruling expected in 2017
Retail store Asda is facing a mass equal pay claim, to be heard by the employment tribunal in 2017, which could impact on hundreds of workers. The case of Brierley v ASDA Stores is a group claim by employees in the retail stores, claiming equal pay with colleagues working in distribution centres, on the basis that they are doing work of equal value.
In 2016, Asda tried unsuccessfully to persuade the Court of Appeal that the 7,000 equal pay claims against the store in the employment tribunal should be stayed (stopped), and that the employees should be forced to bring their claims in the civil (high) court. Asda argued that the case was especially complex and financially significant, with wider implications for the private sector – not just for Asda but also for the retail sector in general, and that a high court judge would be better equipped to decide the case.
The Court of Appeal rejected the appeal. Asda’s application, if granted, would prejudice the employees, who would have to re-start their case, with extra stress, court fees, limitation issues and the risk of costs if they lost. In any event, said the Court of Appeal, employment tribunal Judges are perfectly suited to resolving this kind of case.
Asda v Brierley & Others [2016] EWCA Civ 566