The response of the Equality and Human Rights
Commission to the European Commission’s
questionnaire on the implementation of
European equal pay law principles in domestic
law
18th January 2013
Questions
1. How does your Member State implement the prohibition of direct and indirect
discrimination on grounds of sex with regard to all aspects and conditions of
remuneration for the same work or work of equal value (Article 4, 1st paragraph of
Directive 2006/54/EC)? Please provide statistics on the number and types of cases
concerning pay discrimination brought before national courts and the issues raised in
those cases.
2. Does the legislation of your Member State provide for a definition of what should be
understood to be "work of equal value"? Could you provide information regarding
relevant national case-law on this issue?
3. How does the legislation of your Member State ensure that job classification systems
used for determining pay are based on the same criteria for both women and men and
so drawn up as to exclude any discrimination on grounds of sex (Article 4, 2nd
paragraph of Directive 2006/54/EC)? Is there case law in relation to sex-based
discrimination in job classification systems? Are there other instruments in your Member
State (such as for instance national guidelines/criteria on determining factors for
comparing different jobs), designated to assist in establishing gender-neutral job
evaluation and pay systems?
4. What particular difficulties, if any, have your Member State encountered in the
application of Article 4 of the Directive 2006/54/EC?
5. In relation to Articles 18 and 25 of the Directive 2006/54/EC, could you please
provide us with information on the types of penalties applicable to infringements of the
national provisions transposing Article 4 of the Directive? Apart from the legal
framework it would be helpful to obtain information on which penalties are usually
applied in practice, how courts generally determine them (e.g. the level of
compensation) and which time limits apply.
1
6. In relation to Article 26 of the Directive 2006/54/EC, what measures has your Member
State taken to encourage the prevention of breaches of the principle of equal pay
including in job classification and evaluation systems?
7. In the light of Article 19 of the Directive 2006/54/EC and the case-law of the Court of
Justice[1], do national laws of your Member State enable alleged victims of
discrimination to obtain relevant information on comparable jobs and the salaries of
comparators? Under Recital 37 and Article 21(3) and (4) of the Directive, what
measures has Member State taken to encourage employers to promote equal pay and
to make appropriate information on equal pay available to the employees, such as an
overview of the proportions of men and women at different levels of the organisation
and their pay and pay differentials?
[1]
See, for example, Case 109/88, Danfoss, [1989] ECR 3199, paragraph 12.
2
The Equality and Human Rights responses
1. How does your Member State implement the prohibition of direct and indirect
discrimination on grounds of sex with regard to all aspects and conditions of
remuneration for the same work or work of equal value (Article 4, 1st paragraph of
Directive 2006/54/EC)? Please provide statistics on the number and types of
cases concerning pay discrimination brought before national courts and the
issues raised in those cases.
Non-Contractual Remuneration
1) Sex discrimination in respect of non-contractual remuneration for work (such as
discretionary bonuses) falls to be considered under the general antidiscrimination provisions, originally of the Sex Discrimination Act 1975 and now1
Chapter 1 of Part 5 of the Equality Act 2010.
Contractual Remuneration2
2) In the employment context, remuneration is, however, generally a contractual
matter in UK law. Sex discrimination in respect of contractual remuneration (and
all other contractual terms) has always been the subject of separate, specific
legislative provision; initially the Equal Pay Act 1970 (which came into force in
1975 at the same time as the Sex Discrimination Act 1975), now Chapter 3, Part
5 Equality Act 2010.
1
Where the act of discrimination complained of took place on or after 1 October 2010.
Remuneration includes all pay terms, with specific provision being made for occupational pension schemes.
There is also separate provision for a maternity equality clause, which operates to ensure that women on
maternity leave get the benefit of pay rises that are applied (or would otherwise have been applied) during their
absence. It also protects entitlement to certain bonuses that would otherwise not have been paid to women on
maternity leave.
2
3
3) A claim for equality of contractual remuneration was previously referred to as
‘equal pay’ but – under the Equality Act 2010 – is now referred to as ‘equality of
terms’. Given that most of the case-law will refer to ‘equal pay’, the two terms are
used interchangeably in this response.
Interplay between Discrimination and Equality of Terms
4) The equality of terms and discrimination regimes in UK law are generally
mutually exclusive, with different procedural requirements3 and resulting in
different remedies4, in particular:
o Claims for equality of terms must be brought in the employment tribunal within
six months of the termination of employment, there is no discretion to extend
time5; claims of unlawful sex discrimination should be brought within three
months of the act complained of but tribunals have a discretion to extend time
where it would be just and equitable to do so;
o Equality of terms claims require an actual comparator; claims of unlawful sex
discrimination permit a hypothetical comparator. Where, however, the claim is
of direct discrimination in respect of a term of work relating to pay but there is
no actual comparator, the claim can be brought as one of sex discrimination6.
o A successful claim of unlawful sex discrimination can result in a declaration
as to the rights of the complainant and the respondent; an order that the
respondent pay compensation (for pecuniary and non-pecuniary losses) to
the complainant; and/or a recommendation that the respondent takes
specified steps to obviate or reduce the adverse effect of the discrimination. A
successful equality of terms claim can result in a declaration as to the
3
See, e.g. Hosso v European Credit Management [2011] EWCA Civ 1589, [2012] IRLR 235, CA: Where a claimant
complains not of a difference in contract terms, but of a difference in the exercise of a discretion conferred by that
contract, e.g. in the discretionary allocation of share options, then an employment tribunal has jurisdiction to hear
such a claim as one of sex discrimination only and not as one of equal pay/equality of terms, with the result that
the applicable time limit for presenting the claim to an employment tribunal in the UK is three months rather than
six.
4
See, Peake v Automotive Products Ltd [1977] IRLR 105, [1977] ICR 480, EAT.
5
Equality of terms claims can also be pursued in the County Courts, in which case the time limit will be six years
(five years in Scotland) rather than six months, Birmingham City Council v Abdulla and ors [2012] UKSC 47.
6
Equality Act 2010 s 71.
4
respective rights of the parties and, where appropriate, to an award of arrears
of pay or damages in respect of the complaint.
5) Although the two regimes are thus mutually exclusive, have different procedural
requirements and can result in different remedies, they are also complementary
to each other, are to be construed in a similar way and together form part of a
single, harmonious code7.
Direct and Indirect Discrimination
6) Where the claim relates to non-contractual remuneration, UK legislation
expressly provides that both direct and indirect sex discrimination will amount to
prohibited conduct. Direct discrimination is defined by s 13 Equality Act 2010;
indirect by s 19.
7) In cases of contractual remuneration, brought under the equality of terms
provisions of Chapter 3 Equality Act 2010, there is no explicit reference to direct
or indirect sex discrimination. It is, however, well established in UK case-law that
the legislative provisions applicable to equal pay/equality of terms8 cases must
import the concepts of both direct and indirect discrimination. Although it is for
the complainant to establish that she is paid less than a comparable man for
doing equal work, it is for the employer to demonstrate that the difference in pay
is due to a material factor that is not the difference of sex9. It is in this context that
the phrase “difference of sex” is to be construed as apt to include any form of sex
discrimination, including indirect sex discrimination, see Glasgow City Council v
Marshall [2000] IRLR 272, at 274 per Lord Nicholls.
7
Shields v E Coomes (Holdings) Ltd [1978] IRLR 263, CA (see Lord Denning MR at 266, Orr LJ at 268 and Bridge LJ at
269); Rainey v Greater Glasgow Health Board [1987] IRLR 26 (see Lord Keith at 31); and Wilson v HSE [2009] EWCA
Civ 1074, [2010] IRLR 59 (Arden LJ paras 63-70).
8
Both terms are used here as much of the case-law pre-dates the Equality Act 2010 and, therefore, uses the
phrase ‘equal pay’.
9
Formerly s 1(3) Equal Pay Act 1970, now s 69 Equality Act 2010.
5
8) Thus, in an equal pay/equality of terms case, where there is a difference of pay
between a complainant and her comparator, who are both employed on equal
work, it will be:
“for the employer to prove that the disparity in pay is: due to a factor which
is not the difference of sex, i.e. is not sexually discriminatory. The question
then arises ‘what is sexually discriminatory?’ Both the Sex Discrimination
Act 1975 and article 119 of the EC Treaty (OJ 1992, C224 p 6) recognise
two types of sex discrimination. First, there is direct discrimination, i.e. a
detriment suffered by women which they would not have suffered but for
being women. Second, there is indirect discrimination, i.e. a detriment
suffered by a class of individuals, men and women alike, but the class is
such that a substantially larger number of women than men suffer the
detriment. The classic example of indirect discrimination is a policy under
which part-time workers, whether male or female, are paid less than fulltime workers. There are many more women than men who are part-time
workers. Accordingly such a policy applied to part-time workers is
indirectly discriminatory against women.” See Strathclyde Regional
Council v Wallace [1998] ICR 205, HL per Lord Browne-Wilkinson at pp
211–212.
9) As with direct sex discrimination more generally, where there is direct sex
discrimination in contractual terms, there will be no ‘material factor’ defence.
Where, however, there is indirect sex discrimination in such cases, UK law
effectively allows that this will not be unlawful if it is objectively justified, applying
the test laid down in Bilka-Kaufhaus GmbH v Weber von Hartz (Case 170/84)
[1987] ICR 110. Thus, indirect discrimination in pay (or other contractual) terms
can be justified if it is shown that the measures adopted by the employers which
cause the adverse impact on women “correspond to a real need on the part of
the [employer], are appropriate with a view to achieving the objectives pursued
and are necessary to that end”: Rainey v Greater Glasgow Health Board [1987]
ICR 129 .
10) The approach can be summarised thus: an employer will not be able to
demonstrate that a factor is ‘not the difference of sex’ if the factor relied upon is
sexually discriminatory whether directly or indirectly. An indirectly sexually
discriminatory practice will, however, not be fatal to the ‘material factor’ defence
6
allowed in domestic law if the employer can ‘justify’ it applying the test in the
Bilka-Kaufhaus case [1987] ICR 110. Indirect discrimination in this context is
understood to encompass both cases (1) where the employer applies a
‘provision, criterion or practice’10, which puts or would put women at a particular
disadvantage when compared to men, and (2) where two groups of employees
doing work of equal value receive different pay and where there is sufficient
different disparity in the gender breakdown of the two groups (often referred to as
‘Enderby’ type discrimination11), see per Underhill P, in Newcastle upon Tyne
NHS Hospital Trust v Armstrong (‘Armstrong No.2’) [2010] ICR 674, EAT.
11) In recent years, however, this approach has been further complicated in cases of
indirect pay discrimination of the Enderby type, i.e. where a state of affairs exists
(absent any positive act on the part of the employer) such that men and women
doing work of equal value are paid differently.
12) In such cases, recent UK case-law has allowed that it is open to an employer to
seek to answer the claim of discrimination by showing that the differential
complained of is genuinely the result of factors – whether objectively justifiable or
not – that are not the product of any form of gender discrimination. See
Armstrong v Newcastle upon Tyne NHS Hospitals Trust [2005] EWCA Civ 1608,
[2006] IRLR 124, CA; Middlesbrough Borough Council v Surtees [2007] ICR
1644, EAT; Redcar and Cleveland Borough Council v Bainbridge (ECHR
intervening) [2009] ICR 133; Gibson v Sheffield City Council [2010] ICR 708, CA;
and Newcastle upon Tyne NHS Hospital Trust v Armstrong (‘Armstrong No.2’)
[2010] ICR 674, EAT.
13) In UK equal pay/equality of terms law, this recent domestic case-law has
effectively introduced a further stage in Enderby type cases of indirect sex
discrimination. Where a complainant has demonstrated that there is disparate
10
11
Equality Act 2010 s 19, often abbreviated to ‘PCP’.
See Enderby v Frenchay Health Authority Case c-127/92 [1994] ICR 112, ECJ.
7
adverse impact as between men and women (i.e. to establish a prima facie case
of Enderby type indirect sex discrimination), it is open to the employer to
establish that there is an explanation for this difference that is untainted by sex. It
is only where the employer is unable to demonstrate such an explanation that it
would be required to go on to prove that the reasons for the difference are
objectively justified.
14) The EHRC considers this additional stage in the analysis to be incorrect as a
matter of law. In particular, it has argued (in Redcar and Cleveland Borough
Council v Bainbridge (ECHR intervening) [2009] ICR 133) that it is incompatible
with the case-law of the CJEU. Full argument on the issue (with the EHRC
intervening) was due to be heard by the UK’s Supreme Court in the case of
Gibson v Sheffield City Council but those proceedings were compromised shortly
before the hearing.
15) The complicated nature of the approach taken in UK law to the concept of
indirect discrimination in pay has recently been attested to by Mummery LJ in
Haq v Audit Commission [2012] EWCA Civ1621, the relevant passages from his
Judgment in that case being set out under Q 4 below.
Statistics
16) Claims of sex discrimination in respect of non-contractual remuneration in
employment must be brought in the Employment Tribunal. Statistics are available
for sex discrimination claims before the Employment Tribunal but are not broken
down into ‘direct’ and ‘indirect’ discrimination nor are claims of discriminatory
remuneration identified.
17) Claims of sex discrimination in contractual remuneration can be brought in the
Employment Tribunal or the County Court. Statistics are available for equal
pay/equality of terms claims before the Employment Tribunal but not for those
brought in the County Court.
8
18) Please see the table attached for the most recent figures for sex discrimination
and equal pay claims presented in the Employment Tribunal (highlighted in
bold)12.
Nature of Cases
19) The statistics do not, however, provide information as to the nature of the cases
brought before national courts and tribunals concerning pay discrimination.
20) From independent research undertaken in the Autumn of 201113, it is apparent
that very few of the equal pay/equality of terms cases determined by
Employment Tribunals are brought by individual claimants against private sector
employers. In recent years, there has been large numbers of claims pursued by
multiple numbers of claimants (often supported by trade unions) in the public
sector, in particular by those employed by Local Government employers or in the
National Health Service14.
21) These large-scale public sector claims arise in the context of significant pay
reforms across Local Government and the NHS, which both saw the introduction
and implementation of new job evaluation studies and consequently pay and
grading re-structuring (single status in Local Government and Agenda for
Change in the NHS). Most of the claims related to structural – indirectly
discriminatory - collective pay practices and systems that preceded the reforms
or were related to such past practices.
Other than the Local Government and NHS cases, there are limited Employment
Tribunal Judgments reflecting the more detailed nature of cases brought that involve
complaints of pay discrimination. Research undertaken by Income Data Services for the
12
Taken from the Ministry of Justice’s Employment Tribunals and EAT Statistics 2011-2012 (1/4/1131/3/12), see: Appendix 1
13
By Income Data Services for the UK Government Equalities Office, see below.
In recent years, employment tribunal statistics have suggested that claims brought in the local government and
NHS sectors may account for over 95% of all equal pay claims.
14
9
UK Government Equalities Office in Autumn 2011 has provided summaries of such
cases from the records available going back to 2004.15 The summaries do not always
identify whether a complaint gave rise to issues of direct or indirect discrimination,
although it would appear that there is a fairly even mix (assuming that findings that
(e.g.) the employer’s defence was a ‘sham’ evidence a finding of direct sex
discrimination).
2. Does the legislation of your Member State provide for a definition of what
should be understood to be "work of equal value"? Could you provide
information regarding relevant national case-law on this issue?
Defining ‘Work of Equal Value’
1) UK legislation recognises three routes of comparability permitting a complainant
to pursue a claim for equal pay: (1) like work; (2) work rated as equivalent; (3)
work of equal value. Thus, by s 65 Equality Act 201016, ‘equal work’ is defined as
follows (with the definition of ‘work of equal value’ being highlighted in bold):
(1) For the purposes of this Chapter, A's work is equal to that of B if it is—
(a) like B's work,
(b) rated as equivalent to B's work, or
(c) of equal value to B's work.
(2) A's work is like B's work if—
(a) A's work and B's work are the same or broadly similar, and
(b) such differences as there are between their work are not of practical
importance in relation to the terms of their work.
(3) So on a comparison of one person's work with another's for the purposes of
subsection (2), it is necessary to have regard to—
(a) the frequency with which differences between their work occur in
practice, and
(b) the nature and extent of the differences.
(4) A's work is rated as equivalent to B's work if a job evaluation study—
(a) gives an equal value to A's job and B's job in terms of the demands
made on a worker, or
(b) would give an equal value to A's job and B's job in those terms were
the evaluation not made on a sex-specific system.
(5) A system is sex-specific if, for the purposes of one or more of the demands
made on a worker, it sets values for men different from those it sets for women.
(6) A's work is of equal value to B's work if it is—
(a) neither like B's work nor rated as equivalent to B's work, but
15
Equal Pay Cases and Pay Audits: A Report for Government Equalities Office by Income Data Services July 2012,
pp 15-62 http://www.homeoffice.gov.uk/publications/equalities/womens-equality/modern-workplacesconsultation/equal-pay-audit-report?view=Binary
16
This section sets out the three heads of equal work previously contained in the Equal Pay Act 1970 s 1(2).
10
(b) nevertheless equal to B's work in terms of the demands made
on A by reference to factors such as effort, skill and decisionmaking.
2) The original protection against sex discrimination in pay, in the Equal Pay Act
1970, initially contained no provision for ‘work of equal value’ cases. This was
amended, with effect from 1 January 1984, following the ECJ’s ruling that UK law
failed fully to implement Community law with regard to equality claims based on
the principle of work of equal value (EC Commission v United Kingdom of Great
Britain and Northern Ireland C-61/81, [1982] ICR 578, [1982] IRLR 333).
3) An ‘equal value’ claim can be advanced only where the complainant is unable to
rely on the ‘like work’ or ‘work rated as equivalent’ provisions of the Equality Act,
see per Kay LJ in Redcar and Cleveland Borough Council v Bainbridge and ors
[2008] ICR 238, CA. This is generally to everyone’s advantage as it avoids what
is often a complex, time-consuming and costly procedure to determine the
question of ‘equal value’.
4) Where, however, a woman is successful in her claim of equal value, using a male
comparator employed on different (but equal) work, there is nothing to stop a
man employed on like work or work rated as equivalent to that of the complainant
from then bringing a like work/work rated as equivalent claim citing the woman,
now on a higher salary given her successful equal value claim, as a comparator,
see (e.g.) Hartlepool Borough Council v Llewellyn and ors [2009] ICR 1426, EAT.
The Process of Establishing Equal Value
5) Since ‘work of equal value’ was introduced into UK law, the process for
determining such claims has been described as “lengthy, elaborate and …
expensive”, per Lord Bridge (Leverton v Clwyd County Council [1989] IRLR 28,
at 33).
11
6) Originally, (prior to 2004), save in cases where there were 'no reasonable
grounds' for determining the work to be of equal value, employment tribunals had
the power to appoint an independent expert to prepare a report on the question
of whether the jobs of the claimant and her comparator were of equal value.
7) Subsequently, changes made in 2004 (The Equal Pay Act 1970 (Amendment)
Regulations 2004, SI 2004/2352, now contained in Equality Act 2010, s 131)17
required a particular procedure to be followed by employment tribunals
considering claims of equal value. With these changes, an employment tribunal
was thus empowered to decide the question of equal value itself should it choose
to do so, instead of being obliged to appoint an independent expert. The 2004
changes also removed the 'no reasonable grounds' qualification, so that the
tribunal can in every case decide to appoint an independent expert or to
determine itself the question of equal value. This means an employment tribunal
is no longer able to strike out the claim simply because it considers that there are
no reasonable grounds to determine that the work of the claimant and the
comparator are of equal value. Where, however, a claimant brings an equal
value claim but there has already been a JES which rated the claimant's work as
unequal to that of the comparator, the JES is presumed to be accurate unless the
tribunal has reasonable grounds for suspecting that the evaluation was based on
a system that discriminated because of sex, or was 'otherwise unreliable’18.
8) Where a report is obtained from an independent expert, however, any view
expressed therein is not conclusive of the question of equal value; the report is
evidence only and it is for the employment tribunal to determine the question of
equality, and it must make that decision on the basis of the whole of the available
evidence, of which the expert's report is an important part, but only a part, see
Tennants Textile Colours Ltd v Todd [1989] IRLR 3, NICA, per Lord Lowry LCJ.
17
There is a special set of procedure rules for claims of equality of terms, found in Schedule 6 to the Employment
Tribunal Regulations of 2004 (SI 2004/1861).
18
Equality Act 2010 s 131(5)-(7).
12
9) The changes introduced in 2004 were expressly intended to make the process by
which employment tribunals determined equal value cases “work more effectively
and to tackle lengthy delays, especially in the large-scale and more complex
cases”19. To this end, an indicative time-table for equal value cases was laid
down, envisaging claims not involving an independent expert to take no more
than 25 weeks, and for claims involving an independent expert to conclude within
37 weeks of the claim being issued.
10) Some eight years on, it seems that the indicative timetable bears little relation to
the actual experience of many involved in equal value litigation. An independent
survey conducted by the Equal Opportunities Review (EOR, Issue 186, March
2009) found that many cases get held up at the fact-finding stage. The survey
found that lawyers for the parties now tend to draw up job descriptions for the
claimant and comparator, which are then disputed by the other side. This
adversarial approach to the fact-finding procedure has led in many of the
multiple public sector claims for it to take up to four years for the facts to be
agreed.
Case Law
11) The case-law on ‘work of equal value’ cases predominantly concerns the
procedure adopted by employment tribunals in determining these cases. By way
of example, reported cases have raised the following issues:
a. The period of time over which an employment tribunal should consider the
question of equal value, see Potter v North Cumbria Acute Hospitals NHS
Trust [2009] IRLR 22, EAT.
b. The interplay between a job evaluation scheme (JES) and the
determination of equal value by an employment tribunal relating to an
earlier period of time: the JES not being conclusive as to the question of
equal value for any period prior to its implementation (although it may be
of some evidential value), see Bainbridge v Redcar & Cleveland BC (No 2)
19
According to the Government’s Impact Assessment at the time.
13
[2007] IRLR 494, EAT and Hovell v Ashford & St Peter's Hosptials NHS
Trust [2009] ICR 254, EAT.
c. The ability of the parties to adduce their own expert evidence when the
tribunal has already appointed an independent expert, Middlesborough
Council v Surtees (No 2) [2007] IRLR 981, EAT, where it was held that
parties may call expert evidence to challenge the methodology upon which
the evaluation of an independent expert is based but not the facts on
which the independent expert has based his or her report.
The definition of a Job Evaluation Scheme is addressed in question 3.
12) Where a complainant succeeds in a claim of work of equal value and is found to
be performing work of greater value than that of her comparator20, her remedy
under UK law will be limited to pay equal to that of her comparator and to no
more, see (e.g.) Evesham v North Hertfordshire Health Authority and anor 2000
ICR 612, CA.
3. How does the legislation of your Member State ensure that job classification
systems used for determining pay are based on the same criteria for both women
and men and so drawn up as to exclude any discrimination on grounds of sex
(Article 4, 2nd paragraph of Directive 2006/54/EC)? Is there case law in relation to
sex-based discrimination in job classification systems? Are there other
instruments in your Member State (such as for instance national
guidelines/criteria on determining factors for comparing different jobs),
designated to assist in establishing gender-neutral job evaluation and pay
systems?
Work Rated as Equivalent
1) In the UK, a job classification system – more commonly referred to as a Job
Evaluation Study (‘JES’) – has two potential roles in equal pay/equality of terms
cases:
20
The EU principle of equal pay for equal work extending to claims where the complainant is in fact performing
worker of greater value than her comparator, see Murphy and ors v Bord Telecom Eireann [1988] ICR 445, ECJ.
14
a. As a basis upon which a complainant can pursue a claim for contractual
pay equality, under s 65(1)(b) Equality Act 2010; or
b. As a defence to a claim based on an assertion of work of equal value,
under s 131(5) and (6) Equality Act 201021.
2) In either case, however, the JES in question must meet the requirements of s
65(4) Equality Act 201022, i.e.
(4) A's work is rated as equivalent to B's work if a job evaluation study—
(a) gives an equal value to A's job and B's job in terms of the demands
made on a worker, or
(b) would give an equal value to A's job and B's job in those terms were
the evaluation not made on a sex-specific system.
(5) A system is sex-specific if, for the purposes of one or more of the
demands made on a worker, it sets values for men different from those it
sets for women.
3) Thus, any JES relied upon (whether by the employee-complainant or the
employer-respondent) in equal pay/equality of terms proceedings must be (1)
analytical, based on the demands of the job23, and (2) free of sex bias.
Approach and Case-Law
4) Whether or not there has been a valid JES is a question of fact for the
employment tribunal to determine. A departure from the rules of the scheme may
be fatal to its validity in some cases, depending on how material the breach of
the rules is, see Paterson v London Borough of Islington UKEAT/0347/03/DA, 23
April 2004 and Diageo plc v Thomson EATS/0064/03, 29 April 2004. The tests
that have to be met before a job evaluation study may be relied upon are strict:
21
See as explained at 2. 7) above.
Eaton Ltd v Nuttall [1977] IRLR 71, [1977] ICR 272, EAT.
23
See Bromley v H & J Quick Ltd [1988] IRLR 249, [1988] ICR 623, CA, where a classification of jobs on a paired
comparison and ‘felt fair’ basis was held to be insufficient: the study had to value in terms of demand under
various headings, each worker’s job, not just some – i.e. it had to be analytical.
22
15
an employment tribunal must be satisfied24 not only that the scheme is thorough
in analysis and capable of impartial application, but also that it is sufficiently
detailed to allow the identification of a particular employee at a particular point in
a particular salary grade, see Department for the Environment Food and Rural
Affairs v Robertson [2004] ICR 1289, EAT.
5) That said, the requirement is for the jobs in question to have been ‘rated as
equivalent’. So, the question is whether, having regard to the full results of the
particular scheme, including the conversion of points into a particular salary
grade at the end of the job-evaluation process, have the two jobs been rated as
equivalent (which may not require identical scores, see Springboard Sunderland
Trust v Robson [1992] IRLR 261, [1992] ICR 554, EAT)?
6) Further, the wording of s 65(4) Equality Act 2010 requires there to be 'a study
undertaken with a view to evaluating in [terms of effort, skill, decision] the jobs to
be done by all or any of the employees in an undertaking or group of
undertakings'. So, even if the study apparently rates the two jobs differently, an
equality clause will nevertheless operate where the jobs would have been rated
the same but for the fact that sex discrimination was built into the scheme25
(where, that is, the jobs are of equal value, but the formula for computing the
value of women's work differs from the formula for computing the value of men's
work, see s 65(5)).
7) Where a JES meets these requirements, the results of the job evaluation are
taken as establishing conclusively the respective values of the two jobs in
question26, unless it can be shown that the study was based on a fundamental
24
The burden of proof resting upon the party seeking to rely on the JES in the proceedings.
And an absence of intention to discriminate on the part of the employer will not be sufficient, see Bromley v H &
J Quick Ltd supra.
26
Save that, if the JES is not accepted by the employer as constituting a valid study, it may not be binding, see
Arnold v Beecham Group Ltd [1982] IRLR 307, [1982] ICR 744 EAT. Although, once the study is accepted as valid, it
can be relied on in equal pay proceedings even if it has not actually been implemented by the employer, O'Brien v
Sim-Chem Ltd [1980] IRLR 373, [1980] ICR 573, HL.
25
16
error; that is a plain error on the face of the record. It is not for the employment
tribunal to seek to carry out its own evaluation exercise in a ‘rated as equivalent’
claim.
8) In recent years, the most significant case in which a JES (relied on by the
employer as an absolute defence to the equal pay claims) has been challenged
is that of Hartley and ors v Northumbria Healthcare NHS Foundation Trust and
ors (2009) ET Case No 2507033/07.
9) In Hartley, the complainants sought to attack the NHS JES and pay reforms
known as Agenda for Change. Agenda for Change had been introduced across
the NHS and the case was therefore significant. For the claimants, it was argued
that Agenda for Change had introduced a JES that was invalid, discriminatory
and unsuitable to be relied on, over-valuing ‘male jobs’ and under-valuing ‘female
jobs’. The employment tribunal found for the NHS employer in all respects,
holding that Agenda for Change was founded upon a proper, analytical JES for
equal pay purposes that did not discriminate on the ground of sex and was not
unsuitable.
Guidelines
10) The EHRC is currently developing guidelines for employers on how to design and
implement gender-neutral job evaluation schemes. This will be published in
Spring 2013.
11) There are currently no national guidelines in designing gender-neutral job
evaluation and pay systems but there is however, already guidance from the
EHRC, in its publication Equal Pay and the Equality Act 2010' and Acas27, in its
advice booklet, ‘Job evaluation: considerations and risks' (September 2010) that
looks at how discrimination in the context of job evaluation can be avoided.
27
The UK’s Advisory, Conciliation and Arbitration Service.
17
12) In addition to this there are also a number of sector specific guidelines as well as
a generic scheme called Hays, which can be used in any sector. The varying
schemes are outlined below:
The Local Government NJC Job Evaluation Scheme
o Developed specifically to comply with equal value & equality principles
o Developed by a joint Technical Working Group & intended to be jointly
implemented
o Recommended by an independent Local Government Pay Commission
National Health Service – Agenda for Change
o Delivers fair pay for non-medical staff based on the principle of 'equal pay
for work of equal value'
o Provides better links between pay and career progression using the
Knowledge and Skills Framework
o Harmonises terms and conditions of service such as annual leave, hours
and sick pay, and work done in 'unsocial hours'.
Hays Job Evaluation Scheme
o The Hay Guide Chart Profile System was developed in the United States
in the 50’s and was designed specifically to cover administrative and
managerial jobs in large organisations.
o Hay was first used in the UK in financial sector organisations. It
subsequently spread to many other sectors, primarily, until the late 1980s
for managerial and administrative jobs.
o Since then Hay has increasingly been used to cover all jobs in an
organisation. The scheme was amended in the late 1990s to
accommodate local government manual jobs.
o There are some concerns that as the scheme predates UK and
international equality legislation it may not comply with equal value
principles and practices.
18
4. What particular difficulties, if any, have your Member State encountered in the
application of Article 4 of the Directive 2006/54/EC?
1) A significant gender pay gap has continued to exist in the UK, notwithstanding
the existence of equal pay legislation since 1975. Although the UK has had equal
pay legislation for nearly 40 years, it has consistently been among the poorer
performers in the EU in terms of its gender pay gap, which only fell to under 10%
(9.6%) in November 201128.
2) The EHRC believes that legislation has a role to play in establishing women’s
entitlement to equal pay for work of equal value and employers’ obligations to
ensure that their pay systems are free of sex bias, but acknowledges the
difficulties in the application of measures to prohibit gender-related pay
discrimination. Recently, one of the UK’s senior appellate Judges (with particular
experience in determining equal pay cases at appellate level29) opined as
follows:
3. I will set the facts of the case and the law applicable to them in a wider
scene with some preliminary remarks on the current spate of equal pay
claims in the tribunals and of appeals generated by them. This is an
opportunity to pause and take stock of what is going on in the workplace,
in the tribunals and in the courts.
4. …The 1970 Act is not easy to interpret or to apply30. I am not alone in
thinking that the cases now being brought under it are more difficult than
they were in the past: the evidence is more elaborate, the arguments are
longer and more intricate and the accumulating judgments also grow
longer and more complicated.
5. Over 30 years of litigation have not eradicated unjustified pay
discrimination against both women and men. (Unfairness in pay levels
persists, but does not, of course, have anything to do with this legislation,
this case or this court.) Equal pay litigation in the ETs has now reached
almost epidemic proportions. …
28
Figures taken from the UK’s Office for National Statistics (ONS).
Presiding over many of the recent equal pay cases heard by the Court of Appeal and formerly President of the
Employment Appeal Tribunal.
30
Although referring to the Equal Pay Act 1970, these comments could equally apply to the Equality Act 2010.
29
19
Litigation and/or negotiation?
6. …
7. Why do employees and their employers optimistically invest so much
time, effort and money in the uncertainties of contests of this kind? The
option of negotiation is often available. Constructive and skilful
negotiations conducted in good faith can produce fairer, more realistic and
more enduring benefits all round. They also avoid the long-term damage
that litigation does to relationships between people who, for their common
good, have to work together. Perhaps the question is a pointless one,
because there are as many answers as there are cases. Perhaps the
question is naïve, because negotiations are in fact as pointless as the
question. Behind the question is a concern about avoidable litigation and
its detrimental effects on the links in the indispensable "Human Chain" that
transmits the "continuities and solidarities" of labour and life (Seamus
Heaney Human Chain at p.18).
Legislative aim
8. The long-term goal of the equal pay legislation, which has been in force
since 1975, is not, of course, interminable litigation between waged
workers and their employers about their rights. They all have other things
to do and to spend their money on. The aim is the elimination of sex
discrimination against women and against men in matters of pay. Putting
that uncontroversial aim into practice is taking a very long time indeed,
which is not surprising as the whole set up involves, indeed requires, the
clashing of rights not just between employer and employee, but also as
between groups of employees. The fact that the rights are qualified, not
absolute, has not deterred trips to the tribunals and confrontation in the
courts, which have demonstrated that they are not necessarily the best
places in which to put an end to the injustices of discrimination in the
workplace.
Direct and indirect discrimination in pay
9. Direct sex discrimination in pay is not really a problem. Contested cases
rarely occur in practice if the discrimination is direct, even brazen, and
cannot possibly be justified under any circumstances.
10. Claims based on indirect sex discrimination are a different matter.
They pose special problems of legal analysis, evidence and proof. The
legal interpretation and sensible application of the relevant legislation,
both domestic and European, to cases of alleged indirect discrimination
are most severely tested in cases like the present, which involve
distinctions that are highly debatable on the facts: is this a case of (a)
lawful non-discriminatory pay differences; or (b) unlawful discriminatory
pay differences; or (c) discriminatory pay differences that are lawful,
because they are justified?
11. It is a truism, better repeated than left unsaid, that not every difference
in pay between men and women is proof of unlawful sex discrimination. It
is a useful tip about a trap to avoid. It does not really tell us much else.
There is plenty of general guidance in the authorities on how to draw the
20
line between what is lawful and what is unlawful. We are learning about
that with the benefit of regularly updated instruction and from the
educational experience of trial and error. Where to draw the line in the
particular case is a topic on which expert (and non-expert) opinions are
almost bound to differ in some cases. This is one of them.
12. The twists and turns of the arguments in discrimination decisions are
fraught with danger and difficulty. The risk of unfortunate unintended
consequences is ever-present. Removing or reversing unjustified indirect
discrimination in the pay of one sex can impact on the pay of the other sex
and can even result in unjustified indirect discrimination against them: see,
for example, the discussion in Homer v. Chief Constable of West
Yorkshire Police [2012] UKSC 15 at [26], [30] and [36] (Homer).
Levelling playing fields and reversals of fortune
13. Reversals of fortune are regularly experienced by litigants in equal pay
cases in the tribunals and courts. They are not usually explained by lack of
experience, intelligence or understanding on the part of those entrusted
with the task of finding sensible solutions that are both within the
framework of the legislation and, preferably, workable in practice. The
situations presented to the tribunals can sometimes hover on the verge of
non-justiciability. Considerable demands are made on judicial skills of
conscientious and objective judicial assessment of the detailed evidence
and argument. No case can be decided judicially by the mindless
application of decisions in other cases, or by the mechanical operation of
an inflexible doctrine, or by easygoing leanings in favour of one side or the
other.
14. A theory of indirect discrimination only has to be stated, as it was, for
example, in Homer's Case at [17], to alert the trained legal mind to a range
of potential problems about the definition of basic terms and about
acceptable modes of proof available in concrete cases:"The law of indirect discrimination is an attempt to level the playing
field by subjecting to scrutiny requirements which look neutral on
their face but in reality work to the comparative disadvantage of
people with a particular protected characteristic."
15. The wise words of Edmund Burke encapsulate the problem of putting
that kind of thing into practice, whether in the workplace or in the tribunals
and courts:"…circumstances are infinite and infinitely combined.
Circumstances alter cases and practicality governs conclusions."
16. The architects of equal pay law understood that the procedures and
non- specialist personnel in "ordinary" litigation in the civil courts were not
suited to legal disputes that involve levelling playing fields, scrutinising the
neutrality of requirements for their "reality" and sussing out and assessing
situations of comparative economic disadvantage. Hence the designated
(though non-exclusive) jurisdiction of the ET and of the EAT, in which
most of the cases begin and end….”
…”
21
See per Mummery LJ in Haq v Audit Commission [2012] EWCA Civ 1621.
3) While the EHRC can have some sympathy for the views expressed by the
learned Judge, the unfortunate truth remains that the gender pay gap has not
been addressed by negotiation (and there is no lawful means by which an
employer can be required to enter into genuine negotiations on the issue) and
very often litigation is the only means by which complainants in the UK can seek
redress.
4) The EHRC identifies the particular shortcomings of the equal pay provisions in
the UK as follows:
o The absence of the ability to mount a systemic challenge

The vast majority of equal pay/equality of terms claims brought in
the UK arise from systemic pay differences, often resulting from
occupational segregation. The procedure that has to be followed,
however, requires an individual claimant31 and comparator.

This can discourage the bringing of claims as many of those in
employment do not wish to litigate against their employer.

The individual circumstances of the claimant or the comparator can
often skew the focus of the claim.

Even if individual claimants succeed in their claims, there can be no
guarantee that the terms of others in their position who have not
brought proceedings will be changed.

Where pay inequality arises from collective circumstances, a
procedure that permitted claims to be brought by representative
bodies (such as trade unions) would enable some of these
problems to be surmounted.
o The narrow scope for comparison
31
Albeit that claims can be brought as ‘multiples’; this simply means that a number of claimants can be listed on
one tribunal form. The actual claims are still required to be brought by individuals, identifying actual individual
comparators.
22

UK law requires the identification of an actual comparator in almost
all32 equal pay/equality of terms cases. This is to be contrasted with
pay related discrimination in respect of any other protected
characteristic, where it would be permissible to rely on a
hypothetical comparator. Thus it is possible that, in the same
proceedings, a complainant will be faced with the requirement to
name an actual comparator in a claim for equality of contractual
pay but will be permitted to pursue her non-contractual claim of
pay-related sex discrimination (e.g. in respect of a non-contractual
bonus) against a purely hypothetical comparator.

Moreover, in contractual pay cases, the comparator must be
employed by the same employer (or an associate) and either
working at the same establishment as the claimant or employed at
a different establishment but where there are common terms and
conditions as between establishments33. Resolving such issues can
result in lengthy preliminary hearings before employment tribunals
and the appellate courts, with cases taking a many years simply to
resolve these preliminary points (see, for example, the case of
British Coal Corporation v Smith and ors, where the preliminary
issue of “common terms and conditions” took some ten years to
resolve (from the claims being presented in 1985/1986 to the ruling
by the House of Lords in 199634)).

Furthermore the preliminary issue dealt with in British Coal
Corporation has arisen again very recently in proceedings which
are similarly lengthy and are yet to be resolved. The EHRC is
currently intervening in the case of North v Dumfries and Galloway
Council35, which is due before the UK Supreme Court in May 2013.
The EHRC has concerns that the requirement to show that a
32
The exception to this is in a case of direct discrimination in contractual terms where there is no actual
comparator (see Q1 para (4)). The EHRC are not aware of equality of terms case brought relying on this exception.
33
Equality Act 2010 s 79.
34
British Coal Corporation v Smith and ors [1996] ICR 515, HL.
35
North and others v Dumfries and Galloway Council [2011] CSIH 2
23
comparator works in the same establishment or that there are
common terms and conditions may not comply with Article 157
TFEU. In North the EHRC will argue that the claimants should be
able to rely directly on Article 157 in order to make a comparison
with their comparators who work for the same employer but in
different establishments and on different terms and conditions. It
will also be argued that the claimants do not have show that there
is a ‘single source’ of their terms and conditions on the basis that
the doctrine of ‘single source’ as developed by the ECJ in
Lawrence36 only applies where there is more than one employer.
o The difficulties posed by the absence of any lead-in time within which
employers can adapt their pay systems so as to provide equal pay and
avoid litigation

The EHRC understands that some employers are reluctant to begin
addressing equal pay issues (for example by undertaking job evaluation)
for fear of - litigation being taken against them. In the EHRC response to
'The Discrimination Law review: a framework for a new equality bill for
Great Britain (2007) the EHRC had argued for a 'grace period' to allow
those employers who were actively addressing and implementing equal
pay to try and mitigate this. This grace period would require that the
employer takes action to implement equal pay over a reasonable time
period (agreeing with unions and employees a proportionate protection
against equal pay claims during that period).37 However, past experience
has shown that a period of grace may not necessarily alleviate employers
concerns about potential litigation being taken against them or give
employers an incentive to use the time to address equal pay issues.
o Secrecy in the workplace around pay and benefits
36
Lawrence v Regent Office Care (Case C-320/00) [2002] ECR I-7325
EHRC response to the discrimination law review a framework for fairness: proposals for a new equality bill for
Great Britain
37
24

Due to the nature of pay secrecy, it is difficult to gather evidence
from reliable sources to measure the extent of pay secrecy.
However, in the EHRC’s experience there has been a culture of
secrecy around pay and benefits in the UK. The EHRC is aware of
the use of ‘confidentiality clauses’ within some employment
contracts, which actively forbids or discourages employees from
discussing pay in the workplace. If employees with these contracts
do discuss pay, they can face disciplinary proceedings, which could
lead to a termination of their employment contract.

One indicator of the continuing culture of pay secrecy is that very
often claims are only brought, after a long period of unequal pay,
because the complainant has accidentally learned of the
differential, which she simply did not suspect before.

The EHRC report 'Gender pay activity in large non-public sector
organisations: Baseline Report 2009' revealed that 18% of the
sample responding to the consultation discouraged or forbid pay
discussions. 38

Equality Act 2010 s77 seeks to remedy this by rendering pay
secrecy clauses unenforceable if an individual makes or seeks a
relevant pay disclosure in discussions with a colleague. The EHRC
is not aware of any cases being brought under s.77 to date and it is
difficult to say how effective it has been in changing the culture
around the disclosure of pay.
o The time and money that some large employers devote to fighting
equal pay claims rather than proactively addressing pay issues in
their pay systems

Although employment tribunals can order that interest be paid on
awards made in equal pay/equality of terms cases, there is often
little disincentive for an employer in seeking to take every (often
38
http://www.equalityhumanrights.com/uploaded_files/research/gender_pay_baseline_report.pdf
25
extremely technical) point in such cases, thus lengthening the
length of time it will take to resolve the proceedings.

On the other hand, if the employer proactively seeks to address
equal pay issues in the workplace, it will be obliged to immediately
implement any necessary changes required to remove unjustified
pay differentials identified by the JES, at the risk of equal
pay/equality of terms cases being brought relying on the JES if
implementation is not immediate. There is little incentive to adopt
this course as fighting equal pay litigation can ensure that the
employer does not have to engage with the issues for far longer
whilst (assuming that not all employees in the disadvantaged group
will be amongst those who actually submit claims) still avoiding
having to pay substantial back-dated arrears.
o The length of time it takes for equal pay cases to be heard and the
large backlog of equal pay cases in the tribunal systems

This is a significant short-coming. This response has already
referred to the very lengthy period of time it can take to resolve
preliminary points in ‘test’ cases (i.e. British Coal Corporation v
Smith supra) but litigation delays in this area of law do not solely
apply to cases involving ‘test’ point. The table below39 illustrates the
significant disparity in terms of the time taken to resolve equal pay
claims as compared to other claims brought in the employment
tribunal.
39
Cumulative % of ET
clearances (for
jurisdictional groups)
April 2011 to March
2012, by age of case at
clearance
25%
point
50%
point
75%
point
Equal Pay
1-2 years
3-4 years
4-5 years
Derived from the Ministry of Justice’s Annual Tribunal Statistics 2011-2012
26
Disability Discrimination
19 weeks
or less
31 weeks
or less
51 weeks
or less
Race or Sexual
Discrimination
28 weeks
or less
1-2 years
3-4 years
Religious Belief, Sexual
Preference
18 weeks
or less
30 weeks
or less
1-2 years
Age Discrimination
21 weeks
or less
43 weeks
or less
1-2 years
Working Time
Regulations
11 weeks
or less
20 weeks
or less
37 weeks
or less
Unfair dismissal,
redundancy, insolvency
15 weeks
or less
23 weeks
or less
43 weeks
or less
National Minimum Wage
13 weeks
or less
23 weeks
or less
46 weeks
or less
o The low number of equal pay claims that make it to tribunal as many
are settled or dropped beforehand.
 Allowing that in any given year the number of equal pay claims can
dramatically rise or fall due to the length of time it may take to
resolve equal pay cases), statistics have been analysed over a
specific period of time rather than annually. However the analysis is
undertaken, the fact remains that very few equal pay claims are
actually determined after a substantive hearing of the merits.

In the three year period 2009-2012, 23,800 equal pay claims were
received. Less than 1% (32 claims) were successful. More than
80% were withdrawn or settled40.

Taking a longer period (from 2002-2010), the picture is only
marginally different:
Percentage of equal pay claims reaching stated outcome41
40
Figures taken from the Ministry of Justice’s ‘Employment Tribunals and EAT Statistics 2011-12’.
27
Total that reach hearing
Of which …
Successful at tribunal (claimant)
Unsuccessful at hearing (claimant)
Total that settle
Of which …
Privately settled
Acas conciliated
Other outcomes
Withdrawn
Struck out (Not at Hearing)
Dismissed at a preliminary hearing
Default judgment
Percentage reaching
outcome
7.7%
6.2%
1.5%
48.2%
29.6%
18.6%
44.1%
23.4%
20.2%
0.5%
0.1%
5. In relation to Articles 18 and 25 of the Directive 2006/54/EC, could you please
provide us with information on the types of penalties applicable to infringements
of the national provisions transposing Article 4 of the Directive? Apart from the
legal framework it would be helpful to obtain information on which penalties are
usually applied in practice, how courts generally determine them (e.g. the level of
compensation) and which time limits apply.
Legal Framework
1) The remedy for a breach of equal pay as defined in the Equality At 2010 is
compensation for the employee, not a penalty for the employer. As summarised
in the response under Q1 above, the legal ‘penalties’ for infringements of UK law
prohibiting sex discrimination in pay will depend on whether the pay in question is
contractual or non-contractual in nature.
2) If non-contractual, the claim must be brought in the employment tribunal and a
successful claim of unlawful sex discrimination can result in a declaration as to
the rights of the complainant and the respondent; an order that the respondent
41
Table adapted from Government Equalities Office ‘Legislative Measures to Promote Equal Pay: Impact
Assessment’ (2011), using figures derived from Employment Tribunal Service annual reports and statistics, with
outcomes averaged over a period of 8 years.
28
pay compensation (for pecuniary and non-pecuniary losses) to the complainant;
and/or a recommendation that the respondent takes specified steps to obviate or
reduce the adverse effect of the discrimination42.
3) If contractual, the claim is most often brought in the employment tribunal but can
also be pursued (as a breach of the sex equality clause implied into all contracts
of employment, Equality Act 2010 s 66) in the County Court. A successful
equality of terms claim can result in a declaration as to the respective rights of
the parties and, where appropriate, to an award of arrears (up to a maximum of 6
years) of pay or damages in respect of the complaint43.
4) Where the claim is non-contractual and is pursued as a case of sex
discrimination in the employment tribunal, proceedings must be commenced
within a period of 3 months starting with the date of the act to which the
complaint relates, with conduct extending over a period being treated as done at
the end of the period. In such cases, there is a discretion to extend time for such
other period as the employment tribunal thinks just and equitable. See generally,
Equality Act 2010 s 123.
5) Where the claim is contractual and pursued in the employment tribunal, broadly
speaking proceedings must be brought within six months beginning with the last
day of employment. There are special provisions for concealment or incapacity
cases but otherwise no discretion for the employment tribunal to extend time.
See generally, Equality Act 2010 s 129. Separate rules apply to proceedings
brought in the County Court, where, generally speaking, the time period for
bringing a claim for breach of contract is six years.
The Approach of the Courts
42
43
Equality Act 2010 s 124.
Equality Act 2010 s 132.
29
6) It is difficult to provide a clear response to the question as to how UK courts and
tribunals approach the question of remedy in equal pay/equality of terms cases
or as to the level of compensation generally awarded. First, there is the simple
difficulty of drawing any substantive conclusion from the very limited number of
cases that are actually determined in this jurisdiction (and sums agreed as part of
any settlement will often be confidential to the parties44). Second, there are no
official statistical records dealing with awards in equal pay/equality of terms
cases (and non-contractual claims will simply be subsumed within the far wider
category of sex discrimination complaints).
7) The Government Equalities Office ‘Legislative Measures to Promote Equal Pay:
Impact Assessment’ (2011) records a median compensation award for equal pay
employment tribunal claims successful at hearing as £13,411 in 2010 prices. The
EHRC is unaware of any other figures recorded to demonstrate the level of
awards that are made by courts and tribunals in such cases.
6. In relation to Article 26 of the Directive 2006/54/EC, what measures has your
Member State taken to encourage the prevention of breaches of the principle of
equal pay including in job classification and evaluation systems?
1) To the extent that this question is not already answered above, UK legislation
encourages employers to introduce and implement analytical job classification
and evaluation systems that are free of sex bias by allowing that the results of
such systems can amount to an absolute defence to a claim of equal pay
(assuming that the claim is brought by a complainant whose work has been rated
as less than equal to that of her comparator by the JES in question).
44
The Government Equalities Office ‘Legislative Measures to Promote Equal Pay: Impact Assessment’ (2011),
records an average settlement figure of £3,893 at 2010 prices but it is unclear as to how representative this might
be.
30
2) There remains, however, a disincentive for employers to introduce such job
classification and evaluation systems where the results have to be implemented
immediately (with the necessary amendments to existing levels of pay), failing
which the employer is at risk of equal pay litigation, to which there will be no
defence as a result of the employer’s own JES.
3) On the other hand, where there is no JES, the lengthy, costly and often
unpredictable nature of equal pay litigation can act as a real disincentive to
employees who might otherwise bring claims and, conversely, encourage
employers to believe that it might be preferable for such issues to be determined
in the employment tribunal. Other measures to encourage prevention of
breaches are dealt with in question 7.
7. In the light of Article 19 of the Directive 2006/54/EC and the case-law of the
Court of Justice[1], do national laws of your Member State enable alleged victims
of discrimination to obtain relevant information on comparable jobs and the
salaries of comparators? Under Recital 37 and Article 21(3) and (4) of the
Directive, what measures has Member State taken to encourage employers to
promote equal pay and to make appropriate information on equal pay available to
the employees, such as an overview of the proportions of men and women at
different levels of the organisation and their pay and pay differentials?
1) As stated above, the Equality Act 2010 s 77, renders pay secrecy clauses
unenforceable if an individual makes or seeks a relevant pay disclosure in
discussions with a colleague. This is a new measure that has only been in force
since October 2010 and it is difficult to assess the impact it may have had,
particularly given the historic culture of secrecy around pay and benefits in the
UK. In theory, however, an employee should be free to ask colleagues (who
might be doing like work, work that has been rated equivalent or work that might
be of equal value) about their pay without fear of being in breach of their contract
of employment.
[1]
See, for example, Case 109/88, Danfoss, [1989] ECR 3199, paragraph 12.
31
2) Where a potential complainant is considering bringing a complaint of unequal
pay, it is (presently) also open to them to seek to obtain further information on
comparable jobs and the salaries of comparators using the formal questionnaire
procedure laid down by s 138 Equality Act 2010.
3) It is to be noted that the UK Government has indicated that it plans to repeal s
138 Equality Act 2010, as it believes that the long-established questionnaire
procedure is “prescriptive and potentially damaging to employers”45. The EHRC
observes that only 15% of respondents to the Government’s public consultation
on this proposal shared this view. The EHRC's response to the consultation
highlights their reasons for not supporting the removal of this power46
The EHRC is concerned that this removal of the questionnaire procedure will
undermine the ability of individual employees to obtain information relevant to
potential equal pay/equality of terms cases. This raises concerns that its removal
may amount to a breach of the UK’s obligations under the Directive.
4) In the Equality Act 2010, there is a power to require large employers (250+) to
report on their gender pay gap (s 78). It is still unclear if this will be enacted, if it
is it will not come into force until sometime in 2013 at the earliest.
5) In the meantime, the Government have launched Think, Act, Report, which is a
voluntary reporting initiative for private and voluntary sector bodies with 150+
employees. They are being encouraged to report on a range of gender equality
45
The Government has indicated that the removal of the formal questionnaire procedure will not prevent any
individual from seeking pre-claim information through a more informal route and that an employment tribunal
may still draw adverse inferences from an employer’s refusal to respond to a request for information, or from
evasive answers.
46
Equality Act 2010: Removing: (a) employment tribunals' power to make wider recommendations in
discrimination cases; and (b) the procedure for obtaining information: Equality and Human Rights Commission
position paper
32
issues, of which the gender pay gap is one of many options. The government will
report annually on take up and progress in this area. The first report was
published in November 2012.47 The Government has committed not to enact,
amend or repeal s 78 Equality Act 2010 until this voluntary initiative has been
completed.
47
Government Equalities Office: Think, Act, Report: one year on
33
Appendix
Appendix 1
Table 1: Claims Accepted by Employment Tribunals
April to March
2009-10
2010-11
Total Claims Accepted2
236,100
Total Claims Initially Rejected
4,100
Of the total, those that were
1,300
resubmitted and subsequently
accepted
Of the total, those that were
2,800
resubmitted and not accepted or
never resubmitted
Jurisdiction Mix of claims accepted2
NATURE OF CLAIM
2009-10
Unfair dismissal4
57,400
Unauthorised deductions (Formerly 75,500
Wages Act)
Breach of contract
42,400
Sex discrimination
18,200
Working Time Directive5
95,200
Redundancy pay
19,000
Disability discrimination
7,500
Redundancy – failure to inform and 7,500
consult
Equal pay
37,400
Race discrimination
5,700
Written statement of terms and
4,700
conditions
Written statement of reasons for
1,100
dismissal
Written pay statement
1,400
Transfer of an undertaking - failure 1,800
to inform and consult
Suffer a detriment / unfair dismissal 1,900
- pregnancy6
Part Time Workers Regulations
530
National minimum wage
500
Discrimination on grounds of
1,000
Religion or Belief
Discrimination on grounds of
710
Sexual Orientation
Age Discrimination
5,200
Others
8,100
Total
392,800
34
218,100
1,400
210
2011-12
186,3003
1,300
230
1,100
1,100
2010-11
47,900
71,300
2011-12
46,300
51,200
34,600
18,300
114,100
16,000
7,200
7,400
32,100
10,800
94,700
14,700
7,700
8,000
34,600
5,000
4,000
28,800
4,800
3,600
930
960
1,300
1,900
1,300
2,600
1,900
1,900
1600
520
880
770
510
940
640
610
6,800
5,500
382,400
3,700
5,900
321,800
Table 7: Compensation awarded in Tribunals – cases with Sex Discrimination
jurisdictions48
<£500
£500-£999
£1,000£1,999
£2,000£2,999
£3,000£3,999
£4,000£4,999
£5,000£5,999
£6,000£6,999
£7,000£7,999
£8,000£8,999
£9,000£9,999
48
No.
0
6
%
0%
4%
No
18
9
11
%
£10,000-£12,499
£12,500-£14,999
£15,000-£19,999
15
9%
11
7%
£20,000-£29,999
15
9%
12
7%
£30,000-£39,999
0
0%
6
4%
£40,000-£49,999
0
0%
15
9%
£50,000+
All
4
166
2%
100%
21
13%
11
7%
Maximum award
£89,700
7
4%
Median award
£6,746
5
3%
Average award
£9,940
£7,000£7,999
£8,000£8,999
£9,000£9,999
5%
7%
Compensation awarded is that of which the tribunal is aware. For awards in cases of Discrimination, there is no statutory cap.
35