After years of legal wrangling, mass equal pay claims in the public sector are finally being settled and many have proved costly to the employer. Much of the litigation so far has arisen from bonus structures, which benefited jobs predominately carried out by men rather than women. Terms and conditions in the public sector are generally the subject of collective agreements between the employer and trades unions, and it is reasonably straightforward to identify those responsible for negotiating such agreements.
In the private sector, equal pay claims have generally been limited to individual claims, which have been brought where a particular comparator is thought to be paid more than the claimant. But that is now changing, and the recent case of Asda Stores Limited v Brierley and others illustrates the much larger risks represented by mass claims brought about by occupational segregation.
In that case, the Employment Appeal Tribunal upheld the decision of the employment tribunal that female employees working in Asda supermarkets could compare themselves with predominately male distribution workers based at depots, who were paid more. The claimants argued that their work was of equal value to that of their comparators. Similar claims have been brought against other supermarkets.
Equal pay claims can take many years to resolve, and the consequences can be very costly for employers.
Tips for employers
• Where one gender is under-represented in a particular role, an employer can take positive action to improve the gender balance; for example, by reconsidering where it advertises roles or providing particular training courses for the under-represented gender.
• The business may wish to carry out an equal pay audit to identify whether there is any potential risk.
• Another option is to undertake a valid job evaluation of all roles. This is likely to ensure that any discrimination built into pay practices over the years is eradicated, by properly evaluating the various tasks carried out by staff. It should also provide a defence to any subsequent claims.