by Paula Määttä

XI. United Kingdom

C. Measures for determining and promoting pay equality

1. Permitted grounds for wage differentials

The Equal Pay Act is aimed against discrimination between men and women regarding terms and conditions of employment. If a woman is employed on "like work" or "work rated as equivalent" to that of a man, their contracts of employment and wages can be different if the employer can prove that the variation is genuinely due to a material difference between the woman's case and the man's case. Where the woman and the man do "work of equal value", the employer has to show that the material difference is not based on sex ( 1(3) and 2(6)).

Pay determination by the Industrial tribunal

Under the Equal Pay Act, pay differences between sexes on the grounds of sex may be referred to and determined by an industrial tribunal, and may be so referred either by the person making the claim or by the person against whom it is made. The Industrial tribunal is a three-person tribunal which is chaired by a lawyer. The other two members are selected by the Department of Employment, one from a list submitted by unions, the other from a list submitted by employers. (Rhoads 1993, p. 149.)

Section 2A of the Equal Pay Act, as amended in 1983, provides that the industrial tribunal may not determine a dispute concerning work of equal value unless it is satisfied that there are no reasonable grounds for determining that the work is of equal value, or unless it has required a member of the panel of independent experts to prepare a report with respect to the issue and has received that report. Section 2A(2) 9 provides that there are no reasonable grounds for determining that the work of a woman is of equal value to that of a man if the woman's work and the man's work have been given different values on a job evaluation study pursuant, and if there are no reasonable grounds for determining that the evaluation contained in the study was made on a system which discriminates on the grounds of sex. Section 2A(3) provides that a work study evaluation discriminates on grounds of sex if a difference, or coincidence, between values set by that system on different demands under the same or different headings is not justifiable irrespective of the sex of the person on whom those demands are made.

2. Instruments used to promote equality

Job evaluation

The use of analytical job evaluation as a method for job grading has spread and been generally accepted primarily in the United Kingdom. Its practice seems to be increasing, even though the use of job evaluation is voluntary. According to the Act, job evaluation is a study under which jobs done by men and women are compared and evaluated. Section 1(5) of the Act mentions three headings in particular by way of example: effort, skill and decision. The Equal Opportunities Commission (EOC) also uses responsibility and working conditions. However, jobs often are simply graded according to job title and job content. (Commission of the European Communities 1993, p. 18; Rubery & Fagan 1994, pp. 204, 284.)

The Advisory, Conciliation and Arbitration Service (ACAS) highlights that employees, employers, or their representatives should take part in the job evaluation, thus making it possible to achieve better understanding and confidence. Job evaluation does not cover the collective bargaining system nor does it define pay structures. However, job evaluation is being used with increasing frequency to establish payment structures, particularly in large companies. (ACAS 1989, pp. 5-6;Rubery & Fagan 1995, pp. 214-215.)

Under the regulations, an analytical non-discriminatory job evaluation scheme will operate as a bar to a claim for equal pay for work of equal value. Thus, employers facing claims have either decided to let a court scrutinise their scheme or alternatively they have set up joint committees with unions to revise them. There have been a number of major review exercises in local authorities and diverse large companies, for example, textiles, retail, food processing. A number of these attempt to introduce a unitary scheme to cover the whole workforce. However, many organizations continue to operate separate grading and classification systems that fail to address equal pay for work of equal value. (Commission of the European Communities 1993, p. 7.)

Job evaluation is an important feature of equal pay litigation since the provisions of the Equal Pay Act 1970 were amended in 1983. The Act allows a complainant to rely on the outcome of a non-discriminatory analytical scheme to enforce a claim where two jobs have been rated as equivalent in circumstances where different rates of pay are paid. In addition, the Act allows an employer to exclude consideration of a claim for equal pay for work of equal value where an analytical non-discriminatory scheme has scored different jobs as unequal. Issues concerning the nature of classification and job evaluation schemes have been an important feature of equal pay claims. This has led to the introduction of job evaluation in sectors where high priority has been given to equal value by unions, for example the financial (Lloyds Bank) and retail (Sainsbury's) industries. (Commission of the European Communities 1993, pp. 29-30.)

3. Scope of comparison

A comparison of work can be done for female and male workers who are employed in the same employment. The concept of same employment can cover several different situations. First of all, it can denote where a man and a woman are employed by the same employer. Secondly, it can denote the situation where a male worker and a female worker are employed by different employers associated with the same establishment. Employers are associated if one is a company over which the other has control or if both are companies of which a third person has control. Thirdly, the concept of same employment exists where workers are employed by the same employer at different establishments which have common terms and conditions of employment which are observed either generally or for employees of the relevant classes. Fourthly, the concept of same employment exists where workers are employed by different employers who are associated with different establishments having common terms and conditions of employment either generally or for employees of the relevant classes (McCrudden 1993. p. 143).

There must be an actual worker of the other sex, employed by the employer, with whom women can compare their work and pay. This is in contrast with the support for the idea of equal pay comparisons with a "notional" or "hypothetical" man by the European Opportunities Commission for Northern Ireland. This would mean that a comparison would be possible in the absence of an actual male comparator. In the case of McCarthy's Ltd v Smith (1980) IRLL 210 (ECJ), however, the European Court of Justice determined that in applying the principle of equal pay found in Article 119, the woman is required to show that there is an actual male employee who receives or received more pay than the woman doing equal work for the employer (Commission of the European Communities 1993, p. 8).