This appeal raises a short point of law concerning the temporal scope of a pay comparison in proceedings based on equal pay for work of equal value brought under the Equal Pay Act 1970.
The Claimants sought arrears of pay dating back to 2002, comparing themselves with two comparators in post from that time and found to be doing work of equal value to the women. With effect from 6 April 2006 Mr Coleman was promoted to a different role; and with effect from 1 May 2011 Mr Peever’s role was assimilated onto a Single Status Scheme at a lower rate of pay. There were other male highways operatives who remained employed and were available as comparators for equal pay purposes. The Respondent argued that the Claimants could not compare themselves with Mr Coleman for the purposes of calculating their arrears claims from 6 April 2006 onwards, or Mr Peever from 1 May 2011. The ET rejected those contentions; and the Claimants’ losses were assessed by reference to Mr Coleman’s pay from 6 April 2006, frozen as at 5 April 2006; and Mr Peever’s pay at a level frozen prior to assimilation.
The Respondent appealed. It accepted that where a comparator is in post during the whole period of comparison then the sex equality clause operates with respect to that individual, but argued the position is different if he leaves during the comparison period, and other potential comparators remain because he is no longer an individual who ‘is employed’ on work of equal value (see s.1(2)(c) Equal Pay Act 1970). The reasoning in Sorbie v Trust House Forte Hotels Ltd [1977] ICR 55 and Sodexo Ltd v Gutridge [2009] ICR 70 (EAT) could be distinguished. A statutory modification occurred by reason of the continued employment of actual but different male highways operatives who were available as comparators.
The appeal failed and was dismissed:
(i) There is no temporal limitation or other provision in the Equal Pay Act that restricts the continued implication of the equalised term in any way.
(ii) Once the necessary conditions are satisfied a presumption that there is an equality clause to be read into the contract arises and the less favourable term of the woman’s contract is treated as modified so as not to be less favourable. In other words, the implied contractual right to pay at the higher rate referable to Mr Coleman and/or Mr Peever crystallised in 2002 and has and will continue until the women’s contracts are validly varied or terminated.
(iii) No operative variation occurred (bringing an end to the equality clause modification based on these comparators’ earnings) because a different (albeit potentially valid) comparator continued in post while the chosen comparator did not. On Mr Coleman’s promotion, the necessary conditions for the automatic operation of an implied equality clause in the Claimants’ contracts based on the other male highway operatives cannot have been satisfied because no term in the Claimants’ contracts was less favourable than the terms of the other male highways operatives’ contracts. It was the other way around: the Claimants already had statutorily implied contractual rights to higher pay by 2006 when Mr Coleman was promoted.
(iv) The argument is unsupported by authority. It is inconsistent with Sorbie and Sodexo: once contractual rights to equal pay crystallise, those rights continue until lawfully varied or terminated. The focus is on lawful changes to the women’s contracts and not on the fortuitous continued presence or otherwise of the chosen comparator in the same role.
Citations:
[2018] UKEAT 0222 – 17 – 0706
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 24 April 2022; Ref: scu.618922