Material factors

When a woman is doing the same job as a man but is paid less and is less
qualified, can she bring a claim for unequal pay? Pauline Matthews considers
this and other equal pay issues


Equal pay claim

Company A employs one woman and 10 men in its computer repair shop.
There is no job evaluation scheme. The female employee has limited ability to
mend a range of machines, whereas most of the men can repair a bigger range
than she can. The company offered to pay for her to attend an NVQ course, but
she said she wasn’t interested. It pays everyone who works there £1,000 extra a
year if they have this NVQ. The female employee knows that one of the men earns
£2,000 more than her, and yet she has been there longer. He has the NVQ. She
says she should be paid the same as him.

Pauline Matthews comments: To establish a claim with equal pay, a
claimant has to show that she is employed in like-work or work of equal value
with a man, or that their jobs have been rated as equivalent under an
analytical job evaluation scheme. If a complainant can establish this, the
employer can then explain the difference in pay if there are relevant genuine
material factors.

In this case, she may argue she is employed in like-work as her job is very
similar to that done by the men. There are some differences, however, in
relation to the range of machinery that she can mend, and the question the
tribunal will ask is, are those differences of practical importance? In
deciding this, they will consider how frequently the men are called on to mend
other machines and the importance of the work being done, for example are the
machines they mend in for repair every week, and are they high-value machines?
If they rarely do these extra repairs and mainly do the same work as her, she
could establish a like-work claim.

If she fails a like-work claim, she would probably then make an equal value
claim. In this case, the tribunal either assesses whether two jobs are of equal
worth, or appoints an independent expert to draw up a report. If equal value is
established, the employer still has the opportunity to explain why the jobs are
paid differently. This is called the genuine material factor defence.

A £1,000 pay difference can be accounted for by the fact that the male
employee has an NVQ. Company A would not have to show the NVQ was necessary to
the performance of the man’s job (although that would be helpful and it is best
practice to reward relevant qualifications), only that it was a genuine reason
for the difference in pay and not a sham.

If it decided to pay £1,000 to everyone who had Art GCSE, which is
completely irrelevant to this job, it would be difficult to convince a tribunal
that the reason was genuine – though not impossible.

If the applicant shows that the genuine material factor defence is
discriminatory – and here she may argue that the NVQ is indirectly
discriminatory as it has a disparate impact on women because, for example, it
may be harder for them to pass this particular NVQ, or it may be harder for
women to attend the course and undertake the study because of childcare
commitments – then Company A would have to objectively justify its need for the
NVQ. This would be difficult if it is not necessary for the job or to give the best
performance in the job.

After the NVQ has been taken into consideration, there is still a £1,000
difference in salaries which cannot be accounted for by service, so Company A
would need to dig a little deeper and look for the reasons why there is still a
discrepancy in pay. It could be that the male employee has longer external
experience. If this were the case, the company would have to demonstrate that
this is the reason for the difference in pay, and not just a convenient excuse.


Pay questionnaires

Company B has two branches, one in Manchester and one in London. It
employs three lawyers at the Manchester branch, all female. It recently
recruited three new lawyers to the London office, one woman and two men. The
new female recruit was appointed on £5,000 more than her male colleagues and
the male colleagues were appointed on £2,000 more than the Manchester lawyers.

One of the Manchester lawyers is a friend of the new female recruit, and she
discovers that the new female is on £7,000 more than her. She threatens to
leave, and the company offers her £5,000 per year to stay, which she accepts.
The lowest paid female lawyer in the Manchester branch then serves a
questionnaire on the company asking for details of male salaries.

PM comments: Although these lawyers are employed at different
establishments, if common terms and conditions apply or the lawyers are
employed in the ‘same service’, a claim can be made comparing London and
Manchester pay.

It is expected that the Government will introduce equal pay questionnaires
in April. At present, sometimes in an equal pay case an applicant will serve a
sex discrimination questionnaire, as there is no formal equal pay

It is possible that in April, given the publicity surrounding the new
questionnaire, many more may be served (the failure to answer or an evasive or
misleading reply to a questionnaire could lead to a tribunal making an
inference of discrimination).

However, in this case, Company B could refuse to give details of the top
female lawyer’s salary, as a woman cannot have an equal pay claim with another
woman – it has to be with a man – and therefore there would be no requirement
to provide this information.

However, the lowest-paid Manchester lawyer will discover her male colleagues
in London are earning £2,000 more than her and Company B will need to explain
the pay difference. There may be many reasons, such as the geographical
location. The company may have paid the men more because they would not leave
their current jobs without that extra amount, or it may have advertised the
position at a lower salary and got a poor or no response. Whatever the reason,
the company must document it at the time so that if a claim is brought, it has
good evidence for the reasons for the salary difference.

Another potential scenario is if the men find out that the new female lawyer
is earning more than them and they bring a like-work claim. The company would
be arguing that the difference in pay is due to market forces. At the new
female lawyer’s previous job she could have been on a higher salary, and to
entice her Company B had to offer her more again. It would need proof of this.
If the company is not in a position to prove this, and the men are successful
in their claim, the Manchester female lawyers could take another equal pay
claim comparing themselves to the men on their new salary – by the end of the
year the company could be paying all of its lawyers at the top rate. Beware of
the leapfrog effect.


Possible Comparators

Company C‘s HR manager has left acrimoniously and filed an equal pay
claim, citing several male comparators. One is the finance director who was on
a package £50,000 greater than hers, another is the sales manager who left
seven years ago, and the third is the HR director, who was her boss and who she
says "never did any work but made her do everything". He was paid
£10,000 more than her. Can she take these claims?

PM comments: Although the salary gap between the applicant and the
financial director is great, there is no barrier to bringing a claim. An
employer used to be able to challenge a claim that looked ludicrous by arguing
at a preliminary tribunal hearing that there were no reasonable grounds for the
claim. However, this has now been abolished and the parties must be given the
chance to put forward their own evidence.

In relation to her own boss, the HR manager can claim she is carrying out
work of equal value. The employment tribunal can either make the assessment, or
appoint an independent expert. It may be that the director does not do a lot of
work, and the expert will look at exactly what is done rather than what is in
the job description. It is often the case that over time jobs change and job
descriptions are not updated, so it could well be that the HR manager has been
doing all the work.

Regular updating of job descriptions and proper staff management appraisals
are all part of preventing this type of claim.

Finally, what about the comparator from seven years ago? There is no rule
that says you cannot have a comparator going back this length of time, and in the
recent case Kell v Pilkingtons, a tribunal allowed a woman to use a
comparator she had worked with eight years previously. Of course it would be
helpful to prove that she was employed on work of equal value at this point in
time, but if she is successful, she could make a back pay claim to 1976 (when
the European Court of Justice first established equal pay claims could be taken
under European law) if she has undertaken work of equal value throughout that

Likewise, with her own boss, she could claim back pay to when they first
started working together, but she must show that throughout the period she was
undertaking work of equal value.

The most effective way of avoiding claims like this is to introduce a job
evaluation scheme free of sex bias (see employers’Law magazine, February 2003).

Pauline Matthews is an associate at DLA

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