Blog: Equal with who? (Part 2)

Luke Menzies, Director and Specialist Employment Lawyer at Menzies Law

In our last Equal Pay blog, we talked about the three different ways in which an equal pay claimant can compare him or herself with a higher-paid colleague of the opposite sex.

The comparator has to be in a role which counts as ‘like’ work, work rated equivalent in a job evaluation scheme or work of equal value.

But what about the time-frame? And what about group companies?

Such issues create another set of difficult legal details which had generated pages and pages of legal judgments and commentary.

In a public sector context (where most of the case law so far has originated), should a cleaner at a school be able to compare herself to a worker at the refuse centre where both are employed by the council? What about where one or both roles are outsourced? What if they are outsourced to companies set up by the council specifically to avoid equal pay liability?

The rules that have developed to try to carve a sensible pathway through this type of scenario also apply to private sector employers. In this context, there are five main gateways to comparison. A woman (for example) can compare herself to:

  1. Her predecessor or successor in her own role;
  2. A male worker at the same establishment (on any terms and conditions);
  3. A male worker at another establishment which uses the same terms and conditions (whether employed by the same employer or an associated employer);
  4. A male worker employed by a different employer where there is a ‘single source’ of terms and conditions (e.g. a national collective agreement)
  5. A male worker previously employed by the same employer, where the female worker has subsequently been TUPE’d out to a subcontractor.

Businesses which operate through associated companies or over multiple sites need to be aware of discrepancies that might arise, particularly when the gender pay gap reporting obligations kick in, leading to more information being available across a disparate workforce. Are you ready?

If you have 250+ employees, we’d love to tell you about our bespoke Gender Pay Gap Audit & Advice service. Just get in touch and we will be happy to explain how we can support you.

Luke Menzies
Menzies Law

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Luke Menzies, Director and Specialist Employment Lawyer at Menzies Law