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.
The Asda case
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.
Asda sought to argue – among other matters – that there was no ‘single source’ in the company that set the different terms and conditions, and that claims should, therefore, fail at the first hurdle. However, it is difficult for a large employer to argue there is not a single source that can ensure there is no discrimination in pay practices. As a result, this is a dangerous defence to rely on.
Equal pay claims can take many years to resolve, and the consequences can be very costly for employers. HR practitioners should be tackling the root causes of pay inequality and effectively mitigating the risk of such claims as they do so.
It is rarely the case that an employer will deliberately set out to pay roles in which women dominate less than those of roles where men dominate. However, intention is no defence and, wherever occupational segregation appears, claims look set to ensue.
Tips for employers
There are several steps HR can take to address these issues. 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. It is also open to an employer to use that under-representation as a sort of ‘tie break’ in recruitment.
HR departments may wish to carry out an equal pay audit to identify whether there is any potential risk. This is quite different from the gender pay gap exercise, which many employers are currently undertaking.
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.
The Asda cases should encourage all large employers to consider their pay practices as a matter of urgency. HR practitioners can take the lead by initiating assessments and evaluations that will not only protect their organisations, but also help to make them fairer employers. Ultimately, this is the aim of the law and companies stand to benefit by making the most of the women in their workforce and potential talent pools.
Amanda Jones is a partner and head of the employment, pensions and immigration practice at Maclay Murray & Spens, which is soon to become part of Dentons, the world's largest law firm