Equal Pay Act 1970 (EPA)
As amended (principally by the Sex Discrimination Act) sets out the right of men and women within the same employment to receive equal pay for equal work. It works by implying an ‘equality clause’ into the contract of employment.
The Sex Discrimination Act 1975 (SDA)
Prohibits sex discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services and in the disposal or management of premises.
Article 141 of the European Convention
Establishes the right to equal pay for equal work and work of equal value.
Equal Treatment Amendment Directive 2002 (ETAD)
Consolidated seven existing Directives on gender discrimination and replaced them. Where there are differences in the domestic law the changes are to be implemented by 15 August 2008. Neither the ETAD nor Article 141 specifies the need for a comparator.
Pay under the EPA
Means any benefit which the worker receives as a result of his employment. It includes wages, sick pay, and redundancy payments. It does not cover pensions.
Equal Pay Questionnaire
Must be sent to the employer before a complaint is made or within 21 days of a complaint. Great care needs to be given to the completion of this form.
Precursor to a claim, Employees who intend to bring equal pay claims must first submit a grievance to their employer and wait 28 days before presenting a claim to the Employment Tribunal.
Grievance Procedure There is a three step statutory procedure in relation to grievances which should be followed:
1. The employer must be informed of the grievance in writing
2. The employee must be invited by the employer to a meeting to discuss the grievance where the right to be accompanied will apply and be notified in writing of the decision. The employee must take all reasonable steps to attend this meeting and
3. The employee must be given the right to an appeal meeting if they feel the grievance has not been satisfactorily resolved and be notified of the final decision
The circumstances of each organisation will affect the length of time taken but most employers ought to be able to complete both stages within seven working days.
In responding to grievances, employers should take care to comply with both the statutory grievance procedures and (usually) any additional requirements of their own internal grievance procedures. Failure to comply with the statutory procedures can result in an uplift of between 10 and 50 per cent in any compensation awarded by a Tribunal.
If matters are not resolved at the grievance stage claims alleging a breach of the EPA may be brought before an employment tribunal. In standard cases, they must be brought within 6 months of the end of the contract of employment to which the claim relates.
Burden of Proof
The duty of proving one’s case.
A claimant must name one or more comparator of the opposite sex employed ‘in the same employment’ as the claimant. The comparator must be employed by the same employer or by an associated employer.
Employment Tribunals (ET)
The tribunal will normally consist of three people , a legally qualified chairman and two lay members. The tribunal has jurisdiction to hear claims arising out of breaches of most aspects of the employment relationship.
Case Management Hearings
The chairman of the employment tribunals can ask the parties to attend a case management discussion. The chair can direct parties to provide additional information; disclose documents; provide written answers to questions; require the attendance of witnesses and provide for the exchange of witness statements.
Pre hearing Review
The chairman at a pre hearing review may determine preliminary issues; order payment of a deposit where the chairman considers the claim or response has little reasonable prospect of success; consider written or oral representations or evidence; strike out scandalous, vexatious claims that have no reasonable prospects of success or claims where the claimant or respondent has failed to comply with any tribunal orders.
Attendance of Witnesses
The power to issue witness orders is discretionary. The tribunal must be satisfied that the witness’s evidence is relevant and that the witness would not attend voluntarily. Witnesses who attend tribunal hearings are entitled to claim expenses in respect of travelling, subsistence, loss of pay etc.
Role of ACAS
A copy of the claim form will be sent to the Advisory Conciliation and Arbitration Service. Where a case involves discrimination conciliation can continue for as long as the claim remains.
Compensation for loss by an individual. Damages for non-pecuniary loss such as injury to feelings and aggravated damages cannot be recovered in EPA claims.
Employment Appeal Tribunal (EAT)
Hears appeals on questions of law from decisions made by employment tribunals. The decisions are binding on employment tribunals and an appeal lies to the Court of Appeal and from there to the House of Lords. Any appeal must be made within 42 days after written reasons are sent out by the Tribunal.
Genuine material factor defence
If the claimant can show that their work is of equal value to that of their comparator, and that an element of pay is less favourable, then the onus shifts to the employer to prove that the variation is "genuinely due to a material difference which is not the difference of sex."
The requirement of “genuineness” means that the reason put forward for the difference in pay must be the actual reason. The reason must also be “significant and relevant”
Examples of genuine material factor defences that employers have used to defeat equal pay claims include:
- Market forces and skills shortages
- Red circling
- Geographical differences
- Different skills, qualifications and experience
The genuine material factor defence will fail, however, where the reason itself is 'tainted with discrimination'.
In certain circumstances it is necessary for the employer to prove that the cause of the difference in pay is objectively justified in order to establish a GMF defence. If required to do so the employer must show that there is a genuine need, that it is appropriate and that it is necessary to achieve the objective.
There are two stages in determining if work is like work:
1. Is the work the same or of a broadly similar nature?
2. Are there any important differences in the tasks actually performed?
Work of Equal Value
This involves a complex procedure to enable a tribunal to determine if the work carried out by a woman was work of equal value to that carried out by a man. It involves considering the demands of the work done under various headings such as effort, skill, decision-making, responsibility etc. In the absence of a job evaluation scheme, the tribunal has to make an objective assessment as to whether the claimant's and the comparator's jobs are of equal value. Normally the tribunal will refer the assessment to an ACAS appointed independent expert for a report. Alternatively or in addition, the claimant may commission their own expert's report, which the tribunal will analyse against any evidence produced by the employer.
Work Rated as Equivalent
This involves a situation where the work of the woman and the man is rated as equivalent under a job evaluation study. This will measure the demands made on the two workers under headings such as effort, skill and decision making. The job evaluation scheme must be free from discrimination.
Prepares a report based on the facts relating to the question and send it to the tribunal and the parties, makes him/herself available to attend hearings in the proceedings, can apply to the tribunal to vary, omit or supplement any of the facts on which his or her report is to be based.
Stage 1 Equal value hearing
At the stage 1 equal value hearing, which is expected to take place in all equal value claims within 8 weeks of lodging a claim, the tribunal considers whether:
- There is a valid job evaluation scheme in place. If there is then the tribunal must find that the jobs are not of equal value
- The job of the claimant and the comparator are of equal value itself, or whether it should refer the question to an independent expert
- To make one or all of the standard orders in line with the 'indicative' timetable:
- For the claimant to advise the respondent, within 14 days, of the name of the comparator, or information which can identify the comparator, and of the dates when she believes she was doing work of equal value with the comparator
- For the claimant, within 14 days, to disclose the relevant period over which the work is to be compared
- For both parties to provide written job descriptions for the claimant and the comparator(s) within 28 days
- For the employer to allow the claimant (or her representative) access to the employer's premises to interview the comparator
- For the parties to agree a list of relevant facts within 28 days
- For the parties to set out facts about which they agree, and those about which they disagree, with their reasons (within 56 days of the stage 1 hearing)
- To make any other orders which are appropriate
At this stage, the tribunal can hear evidence about an employer's material factor defence
If the tribunal decides to consider for itself whether the claimant and the comparator are employed in jobs of equal value, then the tribunal will fix a date for a stage 3 Hearing. It is expected that that Hearing will take place within 18 weeks of the stage 1 hearing.
Stage 2 Equal value hearing
This hearing will take place in all cases where an independent expert is to be appointed. If, at the stage 1 hearing, the tribunal decides to appoint an independent expert to produce a report on the equal value question, the tribunal will order the parties to furnish the expert with all the information they were required to disclose to each other, and fix a stage 2 equal value hearing. It is expected that the stage 2 hearing will take place within 10 weeks of the stage 1 hearing.
The main purpose of this hearing is to resolve disputed facts so that the independent expert can evaluate the work on the basis of the main elements of the jobs in question.
The tribunal will make a determination of the facts on which the independent expert must prepare his or her report. Unless the independent expert subsequently applies for these facts to be amended, supplemented or omitted, these are the only facts that the tribunal can rely on at any subsequent stage 3 hearing.
Stage 3 Equal value hearing
At this hearing, the tribunal will:
· Decide whether to admit the independent expert's report
· Decide whether the two jobs are of equal value
· If it has not already done so, hear evidence about the material factor defence
· Decide on the remedy for the claimant
The person making the claim
The person defending the claim
A representative legal action whose outcome is likely to become a precedent.
Protecting pay of individuals whose jobs are downgraded following eg a restructuring of an organisation or an equal pay review. The individual’s pay is frozen until the salary of colleagues within the pay scale catches up with the protected arrangements. Red circling is also referred to as ‘ringfencing’ or ‘pay protection’ and should be used for as short a period as possible. It is important that such arrangements are continually reviewed.
Single Status Agreement
Streamlining of all payscales into one.
If an EPA claim is successful arrears of pay may be claimed for a period of up to 6 years prior to the date when the claim was started. A Claimant can only claim back pay for the period of time that she has established that she was employed on like work or work of equal value to her comparator.
Conditional Fee Agreement
Sometimes referred to as “No Win No Fee Agreements” are an alternative to legal aid and are meant to provide “Access to Justice”. Solicitors engaged under such terms will not charge costs for their services. However, should the case be won they are entitled to a success fee for the risk of not receiving costs if the case was lost.
ET1 (Originating application)
Form used by an employee to make a claim.
Employer’s response form should be submitted within 28 days on which the ET1 was sent.
COT 3 Form
Legally binding agreement for both employers and employees, which is used when settlement has been reached through ACAS conciliation.
Are more commonly used where proceedings are being contemplated or there is a wish to prevent any future claims in relation to an issue. They are only legally effective when signed by both parties and the potential claimant has had independent legal advice regarding it.
Commission for Equality and Human Rights
A non-statutory body that replaces the Equal Opportunities Commission, Disability Rights Commission and the Commission for Racial Equality from 30 September 2007.
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