equal pay: Tribunal could not compare overall package of
terms
A recent Employment Appeal Tribunal (EAT) case
considered whether, in circumstances where women in fact received
more than their male counterparts for their normal working hours,
they could nevertheless bring an equal pay claim on the basis that
the percentage uplift they received for unsociable hours during
their normal working hours was less than that of men. The EAT
confirmed that that it is not correct to compare the overall
package of terms in equal pay cases and stressed that the Equal Pay
Act 1970 (the Act) is not a "fair wages" statute.
Women employed by the NHS contended that their
pay had been less favourable compared with the pay for jobs carried
out predominantly by men. In particular they received
proportionately less money for working their normal contractual
hours at unsociable times. When compared to equivalent male
workers, their uplift was less. However in general the female
workers earned more. The Employment judge considered that the
uplift was part of basic pay (not being related to overtime), and
that when compared to the basic pay of the male workers, the
women's basic pay was not less favourable despite the difference in
the uplift.
The EAT agreed with the women that this was
the wrong test. The House of Lords had decided in 1988 that
comparing the overall package of benefits to determine whether a
women is paid less favourably is wrong. Rather the Act is concerned
with 'terms' and each term that can be deemed a distinct
provision and compared with that of a man must not be less
favourable. This is consistent with European law and Parliament has
not changed that position. In this case the uplift was a distinct
term that could be compared and the ET would have to consider
whether the uplift was less favourable for the women, irrespective
of the fact that they actually earned more than the men.
