Employers may be liable for unlimited back pay compensation if they are
found to be paying women less than men when equal pay questionnaires are
introduced next year.
Employment law experts said last week that the UK limit of six years in back
pay compensation for equal pay claims will be overturned at the European Court
of Justice.
The equal pay questionnaires will give staff the right to request pay
information on a comparable worker and make it much easier for employees to
prove they are not paid fairly.
The questionnaires, which are being introduced as part of the Employment
Bill in April, are voluntary. But employers who refuse to take part are likely
to be penalised if taken to an employment tribunal.
Makbool Javaid, a partner at law firm DLA, told Personnel Today that
employers shown to be paying unfairly will have to be prepared to compensate
staff for the full length of their service rather than for the UK’s six-year
limit.
"There is every reason to believe the European Court of Justice will
support the view that compensation for equal pay claims should be open-ended
and unlimited," he said.
Patricia Leighton, the Jean Monnet chair in European law at the University
of Glamorgan, agreed that UK employers could be in for a nasty shock over the
amount of equal pay compensation they could be liable for.
"Wise employers should be prepared for the fact that any limit on back
pay compensation is likely to be challenged by the European Court of
Justice," she said.
City firms and at least one NHS trust have been hit by equal pay claims so
far this year and the number of cases is expected to rise next year with the
arrival of the questionnaire, which the TUC has described as a "useful
weapon".
The TUC also believes the UK’s six-year limit on back-pay compensation will
not stand up in Europe.
Senior policy officer Sarah Veale said: "I find it a bit strange that
the Government lawyers felt they could put a limit on it."
Equal pay questionnaire fact file
Employers have until January 10 to respond to the latest
consultation paper on the draft equal pay questionnaire.
The draft questionnaire includes:
– A statement of why the individual thinks they are not
receiving equal pay
– A statement on who the individual thinks their comparators are
– Factual questions to establish whether they are receiving
less pay; and if so why
– A question on whether the employer agrees they are being paid
less than their comparator
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– Space for the employers questions
