We have three members of staff: one male and two female. The man has been an employee for 35 years, during which time his role has increased substantially so his salary is considerably higher than his female colleagues’. With the introduction of new technology, his role over the past five years has been eroded bit by bit so his job is now comparable to the role the two women carry out. Although we could ‘red circle’ him, it would be 17 years before their salaries will be equal. Can we use the historic role as a defence?
Assuming the female staff are carrying out ‘like work’ or ‘work of equal value’ to the male employee, if challenged, you would be required to show there was a genuine material factor unrelated to gender that is the reason for the difference in pay. There have been conflicting cases – for example, Enderby v Frenchay Health Authority and, pointing the other way, Villalba v Merrill Lynch – as to whether an employer must also objectively justify the genuine material factor, but the weight of recent case law suggests this is not necessary where the difference in pay is not related to gender.
Working on that basis, the historic role should be sufficient as a genuine material factor, so any equal pay challenge is likely to fail.
Even if you were vulnerable to an equal pay challenge, the options for remedying the disparity are not attractive. ‘Red circling’ (the practice of protecting the pay of individuals whose jobs are downgraded), you say, would take 17 years to equalise pay, while increasing the pay of the female employees is likely to prove expensive. Reducing the male employee’s rate of pay puts you in breach of contract, and opens up a constructive dismissal claim.
The best advice is to simply sit tight and leave matters as they are, content in the knowledge that you seem to have a reasonable defence, should an equal pay claim ever be made.
Lee Whiting is head of employment law at Andrew M Jackson Solicitors
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