Equal pay

If a difference in pay between a male and female employee had nothing to do with sex at the time they were recruited, the original reason for the man’s higher pay (greater experience) can continue to explain the differential some years later because of the incremental nature of the pay scale - and qualify as a material factor defence.

In a potentially very important judgement, the Court of Appeal has held that employment tribunals do not have exclusive jurisdiction in equal pay cases. Such cases can be heard in the civil courts as breach of contract claims, regardless of whether the time limit for bringing such a claim in a tribunal has expired.

Female local authority workers have won the latest round of their long-running equal pay battle with Edinburgh City Council. But, as if to demonstrate the inordinate complexity of equal pay law and the length of time such cases take, the substantive issue of whether the women are actually entitled to equal pay has yet to be determined. The litigation began in 2008 and so far has been concerned solely with whether they can actually bring a claim and with whom they can compare themselves.

Where there is a difference in pay between employees doing work of equal value, the obligation to preserve existing contractual terms on a TUPE transfer can be a sufficient ‘genuine material factor’ defence to an equal pay claim - and there is no general principle that such a defence will 'extinguish' over time.

In equal pay claims, while women can use male comparators working for the same employer at a different establishment, it is not necessary to show a ‘real possibility’ that the comparator would do the same or a broadly similar job at the claimant's workplace.

Moving nurses onto Agenda for Change did not break their continuous employment and they remained in a ‘stable employment relationship’ with the result that their equal pay claims were not time barred.