Equal pay
Pay differences arising from secondment from operational to administrative duties
Equal pay: pay differences arising from secondment from operational to administrative duties
Equal pay: pay differences arising from secondment from operational to administrative duties
By law, men and women must get equal pay for doing: (a) ‘like work’ (same or similar job/skills); (b) ‘work rated as equivalent’ (jobs needing the equivalent skill, responsibility and effort – usually rated equivalent via a job evaluation); or (c) ‘work of equal value’ (work that is of equal value because the skill, training, responsibility or working conditions are of equal value). However, the employer will have a defence to an equal pay claim if it can prove that the difference in pay/benefits is due to a material factor other than sex. The EAT has recently considered a claim where the pay difference between male and female staff arose from a secondment of staff from higher-paid operational to administrative duties.
B worked for a fire and rescue authority in a series of administrative roles over a period of years. National collective agreements applied to the fire authority’s employees (in common with other parts of the public sector, these collective agreements were referred to by the colour of the book cover). B was employed on ‘Green Book’ terms. B brought an equal pay claim; she relied on male comparators who had been seconded to perform administrative work of a broadly similar nature, arguing that they performed ‘like work’ for equal pay purposes. The named male comparators were employed on ‘Grey Book’ terms because they had previously been operational fire fighters. Grey Book terms are more favourable than the Green Book terms, but also required the male comparators to maintain operational competence, and they could be expected to return to operational firefighting duties if required. B sought parity of terms with her comparators in three particular respects: the basic rate of hourly pay, the number of hours per week in respect of which it was paid, and the annual leave entitlement they enjoyed.
B’s equal pay claim failed. The employment tribunal agreed that B’s chosen comparators performed ‘like work’ to her, but held that the pay difference was due to material factors other than sex (ie the need for the former firefighters to maintain operational competence). Although this involved indirect sex discrimination, this was a proportionate means of achieving legitimate aims.
B unsuccessfully appealed to the EAT, which dismissed her appeal and held that the tribunal had not erred in its approach. However, the EAT gave some guidance as to how employment tribunals should assess the genuineness of a material factor defence raised by an employer:
- If an employer seeks to rely on a contractual requirement to argue that the pay differential is due to a material factor other than sex, but the comparator is no longer complying with the contractual requirement in practice, this may be sufficient evidence from which the tribunal ‘could’ infer that the contractual requirement has either been suspended or abandoned altogether by the employer
- However, in the absence of some evidence suggesting that the employer’s conduct or stance towards the contractual requirement has changed, this does not mean that a tribunal ‘must’ draw such an inference merely because the comparator is failing to take proactive steps they are required to take to comply with that contractual requirement (here, to take steps to maintain their operational fitness and competence)
The underlying message is, if an employer intends to justify a difference in pay by pointing towards a contractual requirement/obligation which is only applicable to higher paid staff, sensible steps should be taken by the employer to ensure that this contractual requirement/obligation is still being complied with in practice. If it is not strictly enforced, or if it appears that the requirement/obligation has been suspended or abandoned by the employer, there is a significant risk that a tribunal will refuse the employer’s material factor defence and uphold an equal pay claim.
Barnard -v- Hampshire and Isle of Wight Fire and Rescue Authority [2024] EAT 12
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