Equal pay claims
Non-pension cases
Where an employee successfully claims under the Equality Act 2010 the effect is that an equality clause (which means a sex equality clause or a maternity equality clause) will be deemed to be included in his or her contract of employment. The effect will be to modify any existing term, such as that relating to pay, so that it is no longer less favourable than the comparable term in the comparator's contract, or to include in the claimant's contract a term corresponding to a term in the comparator's contract (see Equality and human rights > Equal pay). This applies to all contractual matters including benefits other than pay, for example holiday entitlement.
Equality is on a term by term basis. It is no defence for an employer to say that the claimant's overall package of pay and benefits is no less favourable than that of her comparator: Hayward v Cammell Laird Shipbuilders Ltd [1988] IRLR 257 HL (decided under the now repealed Equal Pay Act 1970).
A woman may not rely on the equality clause to argue that she should be entitled to more than a man. For example, a woman may not argue that she is better qualified than her male comparator and that she should therefore receive more pay than he does: Pointon v The University of Sussex [1979] IRLR 119 CA (decided under the now repealed Equal Pay Act 1970).
If a court or employment tribunal finds that the employer has breached an equality clause, it may:
• make a declaration as to the rights of the parties;
• award arrears of pay or damages to the complainant.
The Employment Appeal Tribunal (EAT) confirmed in Council of the City of Newcastle upon Tyne v Allan and others; Degnan and others v Redcar and Cleveland Borough Council [2005] IRLR 504 EAT that no injury to feelings award could be made in equal pay claims under the now repealed Equal Pay Act 1970. The "Code of practice on equal pay" confirms that this remains the position under the Equality Act 2010.
Recommendations cannot be made in an equal pay case (s.113(6) of the Equality Act 2010).
If an employee shows that he or she is employed on like work, work rated as equivalent or work of equal value but the employer raises a material factor defence, it is possible that the employment tribunal will find that the pay difference is only partially justified. It may then calculate the difference that is not justified and award pay on that basis.
The Equality Act 2010 provides that, in respect of claims brought in England and Wales, the normal limit on arrears of pay that may be awarded is six years before the date on which the proceedings were instituted. Special provisions apply where the employer deliberately concealed information without which the employee could not reasonably have been expected to start proceedings, or where the employee was a minor or of unsound mind. In these cases, arrears can be awarded back to the date of contravention, which could be more than six years before proceedings were commenced.
However, where the claim is based on jobs rated as equivalent under a job evaluation scheme (JES), the claimant does not have the right to claim back pay prior to the implementation of the JES. Although the fact that the jobs have been evaluated as equal under the JES may be used to show that they were of equal value even before the introduction of the JES, it does not follow that a claim can be made for compensation going back six years solely on the basis of the JES: Bainbridge and others v Redcar & Cleveland Borough Council (No.2) [2007] IRLR 494 EAT. Bainbridge was decided under the now repealed Equal Pay Act 1970, but it seems safe to assume that the position will remain the same under the Equality Act 2010.
In Prest and others v (1) Mouchel Business Services Ltd (2) Middlesbrough Borough Council EAT/0604/10 (decided under the now repealed Equal Pay Act 1970), the EAT held that the substitution of a different comparator did not affect the arrears date for the purposes of calculating compensation, which was six years prior to the presentation of the claim form naming the first comparator. This was because the substitution of one comparator for another did not involve any new claim because both comparators "were road/street sweepers and street sweepers were one of the two classes of comparators named in the original [claim forms]."
Different provisions on arrears apply in Scotland, where the normal limit on arrears is five years and a maximum limit of 20 years applies where the employer's actions prevented the employee from commencing proceedings or the employee was under 16 or incapable.
The equality clause does not affect contractual terms that deal with the laws giving special treatment as regards pregnancy and childbirth. For example, men cannot claim that they are treated less favourably than women because they are not entitled to maternity pay. In particular, sickness benefits are not comparable to maternity benefits, except where a woman is off work before her maternity leave for a reason connected with her pregnancy. In these circumstances, she can claim equivalence with a man who is on sick leave, but she is not entitled to full pay where other employees in a similar situation would not receive it (Handels-Og Kontorfunktionærernes Forbund I Danmark, acting on behalf of Høj Pedersen v Fællesforeningen For Danmarks Brugsforeninger, acting on behalf of Kvickly Skive [1999] IRLR 55 ECJ, North Western Health Board v McKenna [2005] IRLR 895 ECJ and Boyle and others v Equal Opportunities Commission [1998] IRLR 717 ECJ). These cases were all decided under relevant provisions of European law, and therefore remain relevant following the implementation of the Equality Act 2010.
Replacing similar provisions in the previous discrimination legislation, s.145 of the Equality Act 2010 provides that a term of a collective agreement is void insofar as it constitutes, promotes or provides for treatment that is prohibited by the Act, and that a rule of an undertaking is unenforceable to the extent that it has the same effect. Under s.146, employees may seek a declaration from an employment tribunal that a clause is void or unenforceable. In a case decided under similar (but not identical) provisions of the now repealed Sex Discrimination Act 1975, the EAT held that employees were entitled to seek such a declaration during the course of an equal pay claim in which the employer relied on the terms of a collective agreement as part of a material factor defence (Unison and another v Brennan and others [2008] IRLR 492 EAT).
Pensions cases
Under ss.126 and 133 of the Equality Act 2010, if a court or an employment tribunal finds that there has been a breach of an equality rule (which means a sex equality rule or a maternity equality rule), or a breach of a sex or maternity equality clause with respect to membership of, or rights under, an occupational pension scheme, it may make a declaration as to the rights of the parties, which may include declarations as to the claimant's right of admission to, or membership of, the scheme without discrimination, and the terms of admission or membership. This order may have retrospective effect. The tribunal may also make a recommendation and may award compensation for injury to feelings but it cannot award arrears of benefits or damages to be paid to the complainant. The Equality Act 2010 explanatory notes (on the Government Legislation website) explain that this preserves the position established with regard to pensions cases under the (now repealed) Equal Pay Act 1970 whereby the complainant is entitled to be admitted to a pension scheme from a date specified by the tribunal (although this cannot be earlier than 8 April 1976) and is entitled to have any rights that would have accrued under the scheme secured from a specified date (which cannot be earlier than 17 May 1990). The date restrictions are derived from judgments of the European Court of Justice (ECJ).
The situation is different for pensioner members: under s.134 they may be awarded compensation in respect of arrears arising from the breach of an equality clause or rule. Except in a concealment or incapacity case, the arrears period is normally six years prior to the commencement of proceedings. As explained above, the situation differs in Scotland.
Although mainly of historic interest, except for ongoing cases that remain unresolved, the House of Lords (now the Supreme Court) held in Preston and others v Wolverhampton Healthcare NHS Trust and others (No.2) [2001] IRLR 237 HL that the normal six-year limit on arrears from the date of commencement of proceedings does not apply to claims about part-timers denied access to pension schemes. Applying a decision of the ECJ, the House of Lords held that, provided that she pays any employee contributions owing, an employee who has been unlawfully denied access to a pension scheme because she worked part time is entitled to pension benefits calculated by reference to service subsequent to 8 April 1976, the date of the ECJ decision in Defrenne v Sabena (No.2) [1976] ECR 455 ECJ, or the start of employment, if later.
In Copple and others v Littlewoods Plc and others [2012] IRLR 121 CA (decided under the now repealed Equal Pay Act 1970), the Court of Appeal held that female part-time employees who (having previously been excluded from a pension scheme by reason of their part-time status) chose not to join the scheme within three months of it becoming available to them, were not entitled to damages for indirect sex discrimination, because it appeared that they would have opted out of the scheme in any event.