Here’s the recap from last our Equal Pay blog week… Equal pay is based on a male/female comparison, and a term-by-term contractual approach. Got it? Lovely.
But does that mean I can compare myself with any man? The bloke in the corner who’s on Facebook all day? My boss? The CEO? The prime minister?
Sadly not. At a basic level, an equal pay claimant has to show that she and her comparator of the opposite sex are doing “equal work” but she is getting paid less. “Equal work” comes in three flavours…
This essentially means that the claimant does the same job as her comparator. You’re both teachers, or rodent exterminators, or rodents, or teacher exterminators. Whatever. Of course, things get fuzzy round the edges – if you have a teacher with some management responsibility is that still ‘like work’? Well, what are you managing? How much of your time does it take up? Do you need extra qualifications? Do you use them?
These are the sort of questions that Employment Tribunals dealing with equal pay claims might have to hear evidence on. In reality, however, even the most antediluvian employers now generally realise that paying pin money to “the gels” is not really acceptable. Most claims, therefore, and certainly most group claims, do not involve like work at all.
Maybe your organisation has carried out a Job Evaluation Scheme (“JES”) that’s been agreed with your workforce. Many brownie points if you have. But unfortunately that doesn’t mean you have nothing to worry about.
The history of equal pay litigation in this country tells us that just because a JES has been done, it doesn’t mean that the results of the JES have been implemented. Many women succeed in claims because they are being paid less than men at the same level as them on the JES, or even less than men who are meant to be below them under the scheme!
Furthermore, there is a nasty tendency for the people who were earning more before the evaluation to somehow, co-incidentally, to end up being the very folks that do quite nicely after the JES, thank you very much. This result often comes by way of pay protection or ‘bonus’ schemes put in place to ease the transition – both can be challenged.
And there’s another risk too. The fact that a JES has taken place isn’t the end game for an equal pay claim. If a female worker can show that the evaluation methodology itself is discriminatory or unreliable then the whole scheme can be thrown out of the water.
This important ‘gateway’ to bringing an equal pay claim allows female workers to compare themselves to male workers in completely different roles elsewhere in the organisation, regardless of whether or not there is a JES.
Crucially, it opens the door to large claims where workers in a predominantly female-occupied role (typically cleaning or caring) can compare themselves to (almost inevitably higher-earning) colleagues in typically male-dominated roles such as those involving outdoor work, anti-social hours or a very techy skill-set. (Heaven forbid that we should suggest any comparison between HR and Finance…)
How can you tell if a dementia carer’s work is of equal value to a janitor’s? Or if a PR executive is contributing as much to a business as a software engineer? It’s difficult, isn’t it? All the more so when you take into account that the value of any ‘instinctive’ answer is likely to be severely compromised by longstanding social norms with an inherent gender-basis. Check your privilege, as they say.
To answer this crucial question in a ‘work of equal value’ claim, the Employment Tribunal has a whole special procedure for conducting ‘equal value hearings’ which includes gathering lots of evidence about the different roles and, usually, appointing an Independent Expert to determine the issue. It’s like a whole bonus package of fun outside the main hearing. Lengthy, costly and something you really want to avoid if at all possible.
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.