Top 10 Tips For Defending An Equal Pay Claim
If you have been dealing with an employee or a worker who is complaining that their pay is not fair in comparison to a colleague’s pay then taking action at an early stage is always wise. Matthew Grant, an Equal Pay expert in our employment law team, shares his top 10 tips for defending an Equal Pay claim.
(For simplicity, I’ll refer to the person raising the equal pay issues as the “worker” throughout).
- Find a solicitor who is an expert in Equal Pay: An Equal Pay claim is one of the most complex claims to defend in an Employment Tribunal. Not only is the law technical and the case law contradictory, but there are several stages to the process and both parties have their own legal “hurdles” to cross. This means you need a lawyer who is well versed in the law surrounding Equal Pay claims to stand you in good stead right from the beginning.
- Refresh yourself on the job histories of the people involved: A good starting point (both for employers and lawyers) is the job history of the male or female worker and the person of the opposite sex with whom they are comparing themselves (the “comparator”). As an Equal Pay claim can span a period of six years it is important to know what has happened during this time, particularly to the worker. Have they changed job roles in the previous six years? Have they had a career break? Has their employment been the subject of a TUPE transfer? Exploring these issues fully with a lawyer at the outset is extremely important so that you can be very clear about the period that may present a threat.
- Know your pay figures: Once you have refreshed yourself on their employment histories and worked out what period you might need to worry about, the next thing you need to establish is the figures. You and your lawyer will need to look at exactly what “terms” (typically pay and benefits) that your female and male workers have benefited from. The best starting point is to compare pay slips. Be very clear about the differences in basic pay, and also look at bonuses, ex gratia payments, commission, and so forth. Think also about any benefits that do not show on a pay slip – for example company cars, targets, annual leave entitlements etc. Going through this process will enable you to establish if there is a difference in pay at all – if there isn’t any difference then you may breathe a sigh of relief.
- Dig deeper: Once you have established the period and pay differences under scrutiny, think carefully about why the comparator has been better paid than the worker. For example, looking over job interview notes for the comparator may help to refresh your memory about what they were earning in their previous job, or what salary expectations they expressed during negotiations. If you have inherited employees through a TUPE transfer then this might go some way to helping you to justify the pay differences. If you discover that there is a reason for the pay disparities, then your lawyer will advise you on how to explain this to your worker.
- Think about what work the worker and their comparator do: Remember that it is for the worker to establish that they do equal work with their comparator for the duration of the period of the claim. In most cases the worker will claim to do “like work” or “work of equal value” and therefore examining their respective duties and responsibilities is crucial. Unless you directly supervise the worker and their comparator, you may need to talk to their line managers to get the full picture – both about the present and the past. Analysing how their jobs have changed over time could well highlight that the work might be of equal demand today, but wasn’t previously.
- Be careful what you say: Set out your responses in the grievance process and when responding to the Equality Act Questionnaire with care. Remember that anything you say at this stage – however innocently or well-intentioned – could be repeated later and misconstrued. For example, to say “Mr Smith is paid more than you because he does a better job” could make life difficult if you later rely on a defence of market forces. Your lawyer must advise you what you should and should not say, and will help you to prepare careful responses to any grievances and/or Equality Act Questionnaires.
- Use the early stages of the Employment Tribunal process to your advantage: Usually the first hearing that the Employment Tribunal will hold is a Case Management Discussion. Ideally you should be represented at this hearing, but if not, you should prepare well for this. Use this as an opportunity to make your worker spell out their case. Wherever possible encourage them to limit the number of comparators they wish to rely upon to make the process more manageable. Make sure that the Tribunal’s Orders allow you plenty of time to disclose the information you need, and that the information and documents you are required to give are not too extensive.
- Use the Equal Value Rules to your advantage: Whenever a worker claims to be doing work of equal value you should acquaint yourself with the Equal Value process and in particular the requirement to facilitate fact-finding meetings and prepare job descriptions. You should help your comparators and their line managers to understand just how demanding their role is and you should encourage them to consider this in terms of the factor headings that your Independent Expert will use.
- Negotiating settlement: As in most forms of discrimination claims, where there has been unequal pay, early offers of settlement ensure that the relationship does not irretrievably break down and will save you legal fees.
- Equal Pay Audits: These are a good way of identifying where Equal Pay claims might exist and where your defences might be weak. Carrying out an audit effectively and taking corrective action can allow you to reduce unequal pay going forwards, minimising the risk of complaints and reducing any potential liability. You should seek expert help in carrying out any audit to ensure that you look at all job roles objectively and fairly, and to ensure that any corrective action will achieve the overall aim you are striving for. This help may be from a lawyer and/or an HR Consultant with the necessary expertise and experience.
If you have any questions about equal pay issues, leave a comment below, or get in touch with Matthew at firstname.lastname@example.org.