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May 22, 2020
Is Pay Based on Gender?
Since the introduction of gender pay gap reporting, you’d hope men and woman doing comparable jobs would be paid the same. But in reality, is pay based on gender?
In a recent discrimination case heard by an employment tribunal, a female journalist working for the BBC and presenting a news programme, was paid £440 per episode. Meanwhile, a male presenter was paid £3,000 per episode, albeit for a slightly different type of programme. The BBC argued, amongst other things, that the male presenter was required to be ‘cheeky’ and ‘light-hearted’. But the tribunal chair said the panel had difficulty in understanding how that translated into being a skill or experience to do a job. Especially as the ‘light-hearted’ tone was scripted for the male presenter.
The case was settled following the tribunal and the female journalist stated “No woman wants to have to take action against their own employer. I love working for the BBC. I’m glad it’s been resolved.”
What does this case tell us?
Well, importantly, it says that there is still a way to go with regards to equal pay. Plus, it’s more likely to be a woman raising the issue, which is why the information below refers to a woman making a claim.
What does the law say?
The Equality Act 2010 states that there is a right to equal pay, and other benefits, between men and women if they do ‘equal work’.
What is equal work?
Like work. This is where the works involves similar tasks which require similar skills. Any differences in the work are not of practical importance.
Work rated as equivalent. This is where the work has been rated under a fair job evaluation scheme as being of equal value in terms of how demanding it is.
Work of equal value. This is work which is not similar and has not been rated as equivalent but is of equal value. That’s in terms of demands such as effort, skill and decision-making.
For a woman to claim equal pay, she needs to be able to compare her pay to a man carrying out equal work (a ‘comparator’). The woman should choose the man (or men) she wants a comparison with. She can also claim equal pay with more than one comparator.
This can be:
someone she is working with at the present time
her predecessor in the job, however long ago he did the job – although the comparison may be limited to what he was paid at the time of termination of his contract, or
someone she used to work with in the same employment prior to a TUPE transfer to the current employer.
Her employer cannot influence the choice of comparator(s) and the comparator does not have to give his consent to being named in the equal pay claim.
The woman can compare any term in her contract with the equivalent term in her comparator’s contract. This means that each element of the pay package has to be considered separately, and it’s not sufficient to just compare total pay.
If the woman’s equal pay claim is successful, the result will be that her pay is raised to the same level as that of her comparator and she can be awarded back pay up to a maximum of six years. There will not be any reduction in his pay and benefits.
Protection against victimisation
The Equality Act 2010 protects employees from being victimised for making a complaint about equal pay or sex discrimination (unless it’s both untrue and made in bad faith), or for giving evidence about such a complaint.
Victimising a woman because she has made a complaint about equal pay is unlawful. The ‘complaint’ doesn’t have to be by way of bringing a claim to an employment tribunal. It also includes any discussion or correspondence about the matter between the woman and her employer.
The protection against victimisation covers the woman bringing the claim and anyone who assists her. For example, her comparator and any trade union or employee representatives.
In the event a man chooses to raise an equal pay concern with his employer, the above would apply to him too.
Elaine has a wealth of knowledge in producing contracts, training materials and other documentation as well as training other consultants. She piloted a scheme whereby she went on-site to act as a client’s HR Manager two days per week, whilst the post-holder was on maternity leave. Elaine also previously ran her own retail business for seven years, employing four people.
Elaine is a field based consultant for Moorepay and provides on-site HR and Employment Law advice, consultancy and training services to our clients.