by Paula Määttä

XI. United Kingdom

D. Supervision and enforcement of the equal pay principle

1. Equal pay claim

Equal pay cases may be referred to an industrial tribunal by several different parties. Firstly, an employee may make a claim in respect of a term of her contract if it contravened an equal pay clause. The Equal Pay Act is based on individual claims, and so it does not allow class actions in which one or more employees launch legal action on behalf of a group. Secondly, where a dispute arises in relation to the effect of an equal pay clause, an employer may apply to a tribunal for an order determining the rights of the employer and the employees. Thirdly, the Secretary of State may refer to a tribunal any question where a woman's employer has failed to comply with an equal pay clause, if it is not reasonable to expect the employee to take steps to have the question determined.

A woman who wishes to claim higher wages under an equality clause must lodge her complaint with an industrial tribunal no later than six months after her employment ends. Equal pay claims are subject to a limitation period of two years ( 2(5)). However, it may be possible to claim for the full six years provided for by the Limitation Ac 1980 ( 5) if action is taken under article 119 of the Treaty of Rome, which also provides for equal pay for equal work (Charles Early & Marriott (Witney) Ltd v Smith and Ball, Snoxell and Davies v Vauxhall Motors Ltd (1978) QB 11).

The Equal Opportunities Commission (EOC) (in Northern Ireland, the Equal Opportunities Commission for Northern Ireland) may take preliminary action in the industrial tribunal before taking injunction proceedings against the employer in the county court. The EOCs also have power to conduct formal investigations. The EOC may appoint additional Commissioners for the purposes of a formal investigation or it may nominate Commissioners to conduct a formal investigation. A formal investigation may lead to a recommendation or a non-discrimination notice or both.

The industrial tribunal does not determine a dispute as to whether any work is of equal value unless it has required a member of the panel of independent experts to prepare a report with respect to that question and has received that report. A report helps the industrial tribunals to reach a decision. The independent experts investigate pay scales and job content in a particular case, and their assessments about whether or not two jobs should be paid equally become evidence (Jarman 1994, p. 248). The independent experts are chosen by ACAS from applicants with backgrounds in industrial relations. The experts have a lot of power over equal-value questions. For example, they can chose evaluation factors. It is almost impossible at tribunal hearings to challenge the expert on matters of fact in the report. (Rhoads 1993, p. 150.)

A complaint in respect of an equal pay clause may be presented to an industrial tribunal. Where a complaint has been presented to the industrial tribunal and a copy of the complaint has been sent to a conciliation officer in ACAS (in Northern Ireland, the Labour Relations Agency (LRA)), the conciliation officer may endeavour to promote a settlement of the complaint without it having to be determined by an industrial tribunal. If conciliation is unsuccessful, the case may proceed to an industrial tribunal hearing, where the applicant first attempts to prove her case and the respondent then attempts to rebut her case or to establish a defence. Tribunal decisions on equal pay cases may be appealed through three levels -- the Employment Appeal Tribunal, the Court of Appeal, and the House of Lords.

Industrial tribunal statistics on equal pay cases show that in 1994-1995, 418 registered cases were disposed of as follows: 98 were conciliated settlements by ACAS, 286 were withdrawn, eight were successful at tribunal hearing, 17 were dismissed at tribunal hearing, and nine were otherwise disposed of.

2. Equal value claim

In "equal value" cases the procedure is different. An equal value claim is a claim by an applicant to entitlement to the benefit of an equality clause by virtue of the alleged existence of work of equal value. There are three preliminary stages that are unique to equal value cases. First of all, the tribunal is required, before hearing the claim, to invite the parties to apply for an adjournment for the purpose of seeking a settlement. Secondly, a preliminary stage involving consideration of the defence of genuine material factor may take place. On the application of either party, the tribunal may hear evidence and permit the parties to address it on this issue. Thirdly, the tribunal is required to discontinue hearing a case where an existing non-discriminatory job evaluation scheme has given the applicant's job a value different from that of her male comparator. (McCrudden 1993, p. 150.)

Unless the applicant's case fails during one of these preliminary stages, the tribunal is required to refer the question of equal value to an independent expert and adjourn the hearing pending receipt of the expert's report. In making its decision, the tribunal uses the expert's report as evidence. (McCrudden 1993, p. 150.)

3. Remedies

The tribunal may award three types of remedy in a successful claim: a declaration of the employee's rights, an order for back pay, or an order for damages. Back pay may be awarded where the breach of the equality clause relates to pay. Damages may be ordered where the breach concerns other terms in the contract of employment. In the case of back pay and damages the Act stipulates that the tribunal may not make an award relating to the contravention of an equality clause that occurred earlier than two years before the claim was commenced.

4. Legal aid

Legal aid is not available for industrial tribunal cases. The Trade Union Congress (TUC) does not want to extend legal aid to equal pay cases because of a long-standing concern that this would shift the situation from one in which the tribunal process is relatively straightforward and self-representation is the norm, to one where all must resort to legal counsel. However, the EOC has taken a policy decision to try to assist more applicants and allocate additional resources to legal services. (Jarman 1994, pp. 246-247; ILO, 19-23 Nov 1990, p. 84.)

5. TUC and EOC

The TUC and the EOC have suggested that after the case there should be mechanisms which would give other workers the same benefit, once one case has established a precedent with a particular employer. A tribunal should have the power to extend the remedy in an individual case to other similarly situated women in the relevant pay structure or collective agreement. (Jarman 1994, p. 245.)

The TUC is of the view that the complexity and lack of clarity of the present equality legislation result in long delays in the determination of worker's rights (ILO 1992, 313). The Government's view is that there should be as little delay as possible in equal value cases. It has stated that the law in this area is complex. The EOC has complained to the European Commission that the legal framework for equal pay does not comply with Article 119 and with the Equal Pay Directive.