Anti Discrimination Law and Equal Pay

In seeking to critically discuss “In the context of equal pay, the search for a comparator is often a futile exercise in pursuing the goal of pay equity and justice for women workers, because structural job segregation means that there is often no equivalent man in the same establishment doing ‘like work’ or ‘work of equal value’“ [1] in the UK claims for equal pay demand for there to have been a comparison undertaken between the work done by two or more individuals of opposite sexes. It then falls upon the Equal Pay Act (EPA) 1970 to look to provide what are recognised as three distinct routes through which it is possible for a particular female claimant to be able to show that both she and her male ‘comparator ’ undertake work that should actually be every bit as equally well remunerated via – (a) the ‘ like work ’ route; [2] (b) the ‘ work rated as equivalent’ route; [3] and the (c) ‘ work of equal value ’ route. [4] Then, in the event that one of these three distinct routes is made available to a claimant, the ‘equality clause’ in the claimant’s contract serves to guarantee that she enjoys what are considered to be equally favourable contractual terms to her comparator unless the employer establishes the pay differential is due to a material factor unrelated to sex. [5]

Problems have arisen in this regard in the event that the selected route under the EqPA 1970 serves to show that the claimant along with their comparator do what is considered to be ‘un’ like work or work that is deemed to be of ‘un’ equal value – although it is to be appreciated that the claimant in these cases still remain to be of the opinion that she is being underpaid due to her sexuality. Such problems in these kinds of cases can arise both where the claimant’s work is less valuable or more valuable than her comparator’s so that it is then necessary to consider whether it is possible for her to claim what is deemed to be proportionate pay. By way of illustration, in the event that a given claimant’s work is found to be worth 90% of a man’s work it is necessary to determine as to whether she should get 90% of his pay as opposed to 80% and also, conversely, in the event that her work is worth 120% of her male comparator’s work it is necessary to determine whether the claimant is able to claim 120% of his pay instead of 110%. Interestingly, with regard to both cases it is to be appreciated that the answer under the terms of the EqPA 1970 has been recognised as being an unequivocal ‘ No’ since both the claimant and their comparator do not do like work, work rated as equivalent or work of equal value so that what is considered to be the remedial mechanism of the equality clause is not activated. With this in mind, by looking to take what is considered to be a strict reading of the EqPA 1970, it is important to show an understanding of the fact that the same analysis needs to apply in the event that the claimant’s work is worth more than the man’s but she is actually paid considerably less than him.

However, from out of consideration of a significant trio of decisions that culminated in the recent Court of Appeal decision in Redcar & Cleveland Borough Council v. Bainbridge, [6] the European and domestic courts have looked to modify the EqPA 1970 with a view to then allowing a claimant to claim pay equal to (although not greater than) that of her comparator. As a result, the consequent legal position has served to reveal what is considered to be a tension between what is deemed to be a desire to do justice and those limitations that are considered to be inherent in our equal pay legislation in the form of the EqPA 1970 and, more latterly, the Equality Act 2010. Therefore, the decision that was reached in Redcar & Cleveland Borough Council v. Bainbridge [7] may be looked upon as being the final piece in improving the position in the UK regarding the achievement of equal pay that had been begun by the European Court of Justice (ECJ) in Case 157/86 Murphy v. An Bord Telecom Eireann [8] and continued by the Employment Appeals Tribunal in SITA UK Ltd v. Hope (UKEAT/0787/04, 8 March 2005). [9] It is now possible for a claimant to now rely upon the aforementioned three routes recognised under the EqPA 1970 to show she does more valuable work or work that is more demanding than her male comparator so that she should get the same pay. However, cases are still likely to arise in instances of job segregation where the only comparators are a better-paid man whose work is less valuable than hers and a much better-paid man whose work is more valuable. The problem is that it has long been recognised hypothetical comparators are not allowed under the terms of the EqPA 1970 or under the law of the European Union in this regard [10] so that a claim for higher pay than the first man must fail even if the claimant can prove the reason why the employer did not pay her more was that she is a woman. Nevertheless, the value of looking to the Sex Discrimination Act 1975 over the EqPA 1970 as a viable option was effectively supported by what was determined in pregnancy cases that served to precede the inclusion of sections 1(2)(d)-(f) into the EqPA 1970 that served to provide a woman who argues she receives lower pay or less favourable contractual terms because of her pregnancy or maternity leave do not require a comparator. For example, the Court of Appeal held in Alabaster v Woolwich Plc [11] a woman could bring a claim under the EqPA 1970 regarding the earnings-related element of her statutory maternity pay that had not, contrary to Article 141 of the EC Treaty (amended Treaty of Rome 1957 implemented into the UK via the European Communities Act 1972), served to take account of a pay rise prior to her maternity leave ending.

To conclude, with a view to ensuring the effectiveness of such a right, the Court of Appeal in this case of Alabaster v Woolwich Plc [12] looked to then not apply aspects of the EqPA 1970 at section 1 that provide for the imposition of the need for there to be a male comparator. Therefore, the decision reached in Macarthys Ltd v. Smith [13] could be ripe for review because the ECJ’s reasoning was not satisfactory since it assumed reliance upon a hypothetical comparator meant the claim was for ‘indirect and disguised discrimination’. In addition, following the decision that was reached by the ECJ in Enderby v. Frenchay Health Authority, [14] it is possible for an employer to justify part of a pay difference under the EqPA 1970 at section 1(3) so that a claim can succeed in respect of the part which is not justified. Finally, EU legislation may already have overtaken the decision reached in Macarthys Ltd v. Smith. [15] By way of illustration, the Equal Treatment Directive 2006/54/EC has stopped direct and indirect sex discrimination regarding work and working conditions of which the issue of equal pay is included – although the government has indicated it does not like hypothetical comparators regarding equal pay because this could create undue uncertainty regarding if pay arrangements were lawful, whilst claimants could find it difficult to show a hypothetical comparator would have been employed in relation to under more favourable contractual terms. [16]

Question 2(i)

In seeking to advise Dave in relation to any protection that he may have under the Equality Act 2010, there is a need to consider issues of disability discrimination because Dave feels that he is being discriminated against because of his illness. This is because, whilst working as a full-time teacher, Dave has been diagnosed as suffering with severe depression but the illness has been well controlled by medication and he has no noticeable symptoms so he did not formally inform his employer about his illness – although he did mention it to a previous manager (who has since left the organisation) in an informal meeting to discuss an earlier period of sickness absence. However, the problem is that, as a result of a serious personal crisis, Dave has recently stopped taking his medication leading to a dramatic deterioration in his state of mind so as to offend both students and staff and has also been arriving late or even failing to turn up at all for lessons having not been in to work for the last ten days. As a result, Dave’s manager has written to him asking him to attend a formal disciplinary hearing for gross misconduct regarding his behaviour and unauthorised absence due to his state of health so that it is necessary to consider the legal position in this regard.

For one thing there is a need to appreciate the Equality Act (EA) 2010 has brought together what was already in place in the form of the existing legislation for the purpose of then achieving anti-discrimination within society related to all legal issues of concern. Primarily, the Act was seeking to provide for the consolidation of a broad variety of complicated legislation made up of both Regulations and Acts that provided for the foundation of the domestic understanding of the law as it relates to anti-discrimination including the Disability Discrimination Act (DDA) 1995. Ostensibly, the EA 2010 has similar aims to the European Union (EU) Equal Treatment Directives [17] so the EA 2010 needs for there to be equal treatment regarding access to work along with services that are both private and public, regardless of the characteristics to be protected including a disability like depression. Codes of Practice have also been put into place regarding an array of social areas including employment to better explain the EA 2010’s new statutory provisions and guarantee the law is consistently applied by both courts and tribunals. [18] In addition, the Codes of Practice put into place regarding the EA 2010 will also assist with making the law that has developed in this area that much clearer regarding those that have the obligations and those that with the rights. [19]

Dave needs to be advised that employers like the college cannot unlawfully look to discriminate against someone who is ‘disabled’ [20] under section 1(1) of the DDA 1995. ‘Disability’ has been recognised as being “a physical or mental impairment which has a substantial . . . effect on [someone’s] ability to carry out normal day-to-day activities” [21] with medical evidence in support of said ‘disability’ [22] so it is then for the college to look to guard against discrimination against employees like Dave who is disabled. Moreover, to prove he has been discriminated against, Dave needs to show the employer “treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment . . . is justified”. [23] An employer like the college “also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person”. [24] Therefore, if Dave can show his employer is guilty of unlawful discrimination then he is can bring an action in the Employment Tribunal and it is up to the employer to show their actions are justifiable [25] to then be judged objectively by the court looking to evaluate the case. [26] Then, since Dave also has a right to work, [27] if his employer is making it difficult for someone with his disability to work it is incumbent upon Dave’s employer to take steps to remove any factors that make it difficult for him to continue to work wherever they are ‘reasonable’. [28]

Question 2(ii)

In seeking to advise Lorna with regard to what rights, if any, she may have under the Equality Act 2010 in relation to the potential discriminatory nature of the job advertisement she has seen there is a need to first consider the details of the advertisement itself. The advertisement was placed in the local newspaper for a trainee post in a well-known fast-food company specifying all prospective applicants must be able to work flexible shifts at times specified by local management with minimum notice. However, the problem for Lorna is that, whilst she feels that in every other way the job would suit her, the requirement that she might have to change shifts at short notice will cause major problems with her child care because she is the single parent of a young child and is very keen to return to work but decides the stipulation of flexible shifts means she is unlikely to get the job if she applies and so does not bother.

The EA 2010 has brought together what was already in place for the purpose of then achieving anti-discrimination within society related to all legal issues of concern. Primarily, the Act was seeking to provide for the consolidation of a broad variety of complicated legislation made up of both Regulations and Acts that provided for the foundation of the domestic understanding of the law as it relates to anti-discrimination including the Sex Discrimination Act (SDA) 1975. Ostensibly, the EA 2010 has similar aims to the EU Equal Treatment Directives [29] so the EA 2010 needs for there to be equal treatment regarding access to work along with services that are both private and public, regardless of the characteristics to be protected including a disability like depression. Codes of Practice have also been put into place regarding an array of social areas including employment to better explain the EA 2010’s new statutory provisions and guarantee the law is consistently applied by both courts and tribunals. [30] In addition, the Codes of Practice put into place regarding the EA 2010 will also assist with making the law that has developed in this area that much clearer regarding those that have the obligations and those that with the rights. [31]

In advising Lorna it is necessary to consider the law related to the recognition of equality between the sexes to guard against cases of sex discrimination arising. To this effect, sexual equality has long been a central employment law principle since the SDA 1975 [32] had been implemented along with the EC Treaty (amended Treaty of Rome 1957 enacted domestically via the European Communities Act 1972) that states at Article 141(1) it is for each of the European Union (EU) Member States to guarantee the principle of equal pay for equal work. This understanding of the importance of equality between men and women socially has then only been further endorsed by the fact equality under EU law has led to the imposition of Article 13 into the EC Treaty since policy makers within the European Council had already looked to ‘combat’ discrimination through the ongoing development of the law. [33] However, whilst Lorna needs to be advised there is still a degree of separation since substantive equality requires the endorsement of equal opportunities, [34] men and women should be treated equally in relation to benefits that are likely to accrue from employment. [35] Therefore, regarding Lorna’s position, where a comparative is made with a man of similar status and it would also have impacted upon them in the same way then this advertisement would not be discrimination against someone like Lorna – although this is unlikely because women are still usually the main care providers in families. [36]

Question 2(iii)

In seeking to advise Ray in relation to any potential claim he may have under the Equality Act 2010, there is a need to note Ray has complained on a couple of occasions to his immediate manager about the fact that, since both his parents are originally from Scotland, he has recently moved from his home town of London to Glasgow for work. This is where the problems for Ray began. Ray’s new workmates have been constantly calling him the ‘English boy’ and other unpleasant names in the mistaken belief that he is of English origin, but his immediate manager has told him that his workmates are ‘just having a laugh’ and that if he ignores it they will eventually stop even though the constant taunts are really getting Ray down so he feels like leaving the job.

With this in mind, the EA 2010 has brought together what was already in place for the purpose of then achieving anti-discrimination within society related to all legal issues of concern. Primarily, the Act was seeking to provide for the consolidation of a broad variety of complicated legislation made up of both Regulations and Acts that provided for the foundation of the domestic understanding of the law as it relates to anti-discrimination including the Race Relations Act (RRA) 1976. Ostensibly, the EA 2010 has similar aims to the EU Equal Treatment Directives [37] so the EA 2010 needs for there to be equal treatment regarding access to work along with services that are both private and public, regardless of the characteristics to be protected including a disability like depression. Codes of Practice have also been put into place regarding an array of social areas including employment to better explain the EA 2010’s new statutory provisions and guarantee the law is consistently applied by both courts and tribunals. [38] In addition, the Codes of Practice put into place regarding the EA 2010 will also assist with making the law that has developed in this area that much clearer regarding those that have the obligations and those that with the rights. [39]

In effectively advising Ray, however, there is also a need to appreciate that the domestic courts have looked to take a more proactive approach to other issues of discrimination that arise in the workplace including harassment. [40] For example, in the case of Insitu Cleaning Co Ltd v. Heads, [41] on analogy with Ray’s experiences in his employment, a single flippant remark (i.e. “Hiya, big tits”) was deemed sexual harassment in the circumstances that has since been furthered by the enactment and implementation of the Protection from Harassment Act 1997 so as to bring about a strict adherence to the law. A further analogy can also be drawn in advising Ray with the decision in Jenkins v. Legoland Windsor Park Ltd [42] where an employee with a withered arm who was presented with a Lego model portrait had a complaint of disability discrimination upheld under the Disability Discrimination Act 1995 and the Disability Discrimination Act 2005. Finally, more specifically for advising Ray, in Chief Constable of Kent Constabulary v. Kufeji [43] a white police officer holidaying in South Africa who sent a postcard home of topless women to his fellow employees with the message ‘South Africa’s answer to Mayfair’ on the back was seen by a Nigerian officer and was found to be detrimental to his dignity in relation to the RRA 1976 as amended by the Race Relation Act 1976 (Amendment) Regulations 2003. [44] Therefore, it would seem Ray would have a claim for harassment on the basis of how he was treated by his fellow employees during the his work.