Equal Pay: Comparators

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Equal Pay: Comparators

Published 5 July 2018

The facts

Two groups of women were employed by Reading Borough Council. They brought equal pay claims. The tribunal found that the women had been performing work of equal value to the work performed by (for the first group of women) Mr Coleman, who was a highways operative and (for the second group of women ) a tractor driver, Mr Peever. The two groups of women claimed arrears of pay going back to 2002. The two comparators were in post from 2002, doing work of equal value with that done by the respective groups of women. However, with effect from 6 April 2006, Mr Coleman was promoted to a different role. Other male highway operatives were employed after this point, and were available as comparators for equal pay purposes. Reading Borough Council argued that the first group of women could not compare themselves with Mr Coleman from the date of his promotion onwards. The women disagreed, and calculated their losses by reference to his pay, frozen at the day before his promotion.

Mr Peever's salary changed from 1 May 2011, when he was assimilated into a different pay scheme, at a lower rate of pay. Reading argued that, from that date, the arrears of equal pay claims should be assessed by reference to the reduced rate of pay. The second group of women disagreed.

The employment tribunal agreed with the two groups of women, and calculated the arrears of pay accordingly.

Reading Borough Council appealed to the EAT. The EAT dismissed the appeal, holding that once a comparator has been selected, the Council could not contend for a "better" or "more appropriate" comparator. From 2002, when it was found that the sex equality clause should be triggered in their contracts, the clause took effect to amend the women's contracts so as to equalise their pay with that of the chosen comparator. Their right to higher pay had crystallised in 2002 and would continue until the women's contracts had been validly varied or terminated, irrespective of whether the comparators moved onto different rates of pay, or leave employment.

What does this mean for employers?

This judgement is consistent with previous authority. The essence of an equal pay claim is the equalisation of contractual terms between men and women who are doing equal work. Once a claim succeeds, the offending term in the claimant's contract is 'levelled up' to match the corresponding term in the comparator's contract. The EAT in this case confirms that, once that 'levelling up' has taken place, the claimant remains entitled to the enhanced terms, regardless of what subsequently happens to her comparator.

Reading Borough Council v Ms T James and Others

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Key Contacts

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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