Despite the widespread belief in equality, we live in a world which is marred by

deep inequalities.
1
for centuries it was it was affirmed that women were not like
men there for they deserved fewer rights and even if we can agree that man and
woman are alike, there are still some doubts that whether they should be always be
treated relevantly.
2
ver since women entered the labour force, they have been
paid less than men. !hat woman did not need to earn a "living wage#, as their
husbands were supporting the family. mployers and policy$makers %who were
almost always men& were also very likely motivated by the belief that women
should earn less than their husbands, viewing the alternative as a threat to the
traditional balance of power within the family.
!he qual 'ay (ct 1)*+ came into force on 2) December 1)*,. -n the intervening
time full$time women workers have seen their hourly rates of pay, relative to those
of fulltime men, increase from ./0 in 1)*, to 11.10 in 2++/. 2ut the almost ,+0
of women in 2ritain who work part$time continue to earn less than .+0 of the
average hourly rate for full$time men %a figure barely changed since the
implementation of the 3D( and q'(. 'art$time workers are also
disproportionately e4cluded from fringe benefits such as pensions, sick$pay,
company cars, transport subsidies, discounted goods, finance and5or loans, life
assurance, private health care, childcare and recreation facilities, meal subsidies,
accommodation and paid time off for domestic reasons. !he !67 estimated in
1))1 that fringe benefits were worth, on average, 1. pence per hour to full$time
workers, but only 8+ pence per hour to part$timers.
7abinet 9ffice figures released in 2+++ indicated that, over a lifetime, highly
skilled women lost :18/ +++ simply by virtue of being women, middle skilled
women :281 +++ and low skilled women :1)* +++. !he cost of childbearing ;
:1) +++, :18+ +++ and :21, +++ respectively for high, medium and low skilled
women ; was in addition to the se4 penalty. -n all, typical high skilled mothers
earned 110 of the lifetime earnings of comparable men, typical medium skilled
mothers ,*0 and typical low skilled mothers /80.
!he gender$pay gap persists within as well as between occupations. -n 2++1, for
e4ample, the gap between male and female managers in the 6nited <ingdom
stood at 280. =ithin managerial subgroups, however, it ranged from /)0 in
distribution, storage and retail and around /+0 in financial institutions and offices
and other service industries through around 2+0 in hospitality and leisure,
functional managers and health and social services to a low of .0 in production.
=hilst a recent uropean 7ommission study reported an improvement in the
average earnings between male and female workers over the last decade, recent
studies have also highlighted that the gender pay gap still e4ists both in the 6<
and on a worldwide scale. (ccording to a report by the -nternational !rade 6nion
7onfederation, the worldwide pay gap currently stands at 1.0. -n the 6<, a recent
1
3andra fredman, preface> discrimination law, o4ford university press, 2++2
2
3andra fredman, discrimination law, o4ford university press, 2++2, p. 1
!67 report observed that there was a /./0 gap in average earnings between male
and female workers aged 22$2) years old and that this gap increased further to
11.20 for those aged between /+ and /). !he !67 commented that?
@6ndervaluation of womens work, a persistent employment penalty for mothers,
occupational gender segregation, and discriminatory treatment in the workplace
continue to hamper efforts to further reduce the pay gap@. !he 6< pay gap is said
to be a third higher than the 6 average.
/
=hy is there such a disparity between the earnings of women and men despite
almost three decades of legislative interventionA !he first point to make relates to
the comple4ities involved? in addition to the q'(, any survey of the law relating
to equal pay must also take into account 7 provisions $ in particular, (rticle 181
!7 and 7ouncil Directive *,511* %the qual 'ay Directive&. !o the e4tent that
6< law is compatible with the 7 provisions, the former should be relied upon.
2ut in those cases where 6< legislation is inadequate %where, for e4ample, the
pay whose inequality is challenged takes the form of unfair dismissal
compensation which is covered neither by the q'( nor by 3D(&, 7 law can be
relied upon either for the purposes of interpreting the 6< legislation consistently
with it or, where this is not possible, directly. -n this latter respect the position
regarding pay is unusual in employment law terms? whereas most 7 employment
provisions take the form of directives which can be relied upon by the individual,
if at all, only against the state %whether as employer or otherwise/&, (rticle 181
%and, to the e4tent that it serves only to apply (rticle 181, the qual 'ay Directive&
can be relied upon as against private sector employers too.
2ritish legislation imposes an individual model of equal pay. !he legal challenge
to e4isting pay structures comes only from those employees directly affected by
them, and then only if they can tailor their challenge within the narrow legal frame
work of the equal pay claim. !here is no obligation upon employers to review pay
structures for evidence of discrimination and, while some trade unions have been
in the forefront of the struggle to improve womens pay, no recognised legal role
for them.,
-n order to challenge her rate of pay an individual woman %or man& must select a
comparator of the opposite se4 who is paid more than she %or he& is but whose
work is equivalent in one of three ways? i.e., is either like %broadly similar& work
to that done by the claimant, or has been rated as equivalent to hers by a Bob
evaluation scheme carried out %or agreed& by her employer, or is of equal or less
value than the work done by her.
Cot only is the equal pay claimant obliged to put forward a comparator who fits
one of these three sets of criteria but the comparator must, in addition, be
employed by the same or an associated employer. as the equal pay claimant and at
/
mployment Daw Cews Earch 2++1 2
the same establishment in Freat 2ritain or one at which common terms and
conditions are observed either generally or for employees of the relevant classes.*
( woman may choose more than one comparator for an equal pay claim, and
might be well advised to do so in order to multiply her chances of success.) 2ut
this tactic is not without its pitfalls? in Leverton v Clwyd the Gouse of Dords, per
Dord 2ridge, counselled industrial tribunals to? be alert to prevent abuse of the
equal value claims procedure by applicants who cast their net too wide over a
spread of comparators. !o take an e4treme case, an applicant who claimed
equality with ( who earns :H and also with 2 who earns :2H could hardly
complain if an -ndustrial !ribunal concluded that her claim of equality with (
itself demonstrated that there were no reasonable grounds for her claim of equality
with 2.1+
!he reluctance of their Dordships to permit multiple$comparator claims is perhaps
understandable given the delays and e4pense associated with the investigation of
equal pay claims, in particular where the claim is one of equal value %which, until
recently, required an independent e4perts report if it was to succeed&. 2ut there
are real difficulties in choosing an appropriate comparator, particularly in an equal
value claim, when information on pay and Bob requirements is hard to come by
outside heavily unionised workplaces. -n addition, even independent e4perts rarely
share similar approaches to the evaluation of Bobs.
!he three possible types of claim consist, of like work, work rated as
equivalent and work of equal value. Dike work is defined by s.1%8& of the
q'( as work which is of the same or a broadly similar nature . . . the differences
%if any& between Ithe BobsJ . . . not IbeingJ of practical importance in relation to
terms and conditions of employment> and accordingly in comparing Ithe BobsJ
regard shall be had to the frequency or otherwise with which any such differences
occur in practice as well as to the nature and e4tent of the differences. -n
introducing the q'(, the 3ecretary of 3tate 2arbara 7astle was keen to stress that
like work went well beyond the same Bob, a definition which she claimed was
so restrictive that it would merely impinge on those women, very much in the
minority, who work side by side with men on identical work.11
Gence, she claimed, differences between Bobs had to be of practical importance
in order to preclude a like work finding. !he approach of the tribunals has not
always been as Ers 7astle envisaged it.1
=ork will be regarded as having been rated as equivalent, according to s.1%,&, if
the Bobs of the applicant and her comparator%s& have been given equal value in a
Bob evaluation scheme which has considered the demands made upon all or any
employees in an undertaking or group of undertakings under headings such as
skill, effort and decision$making, and which has been agreed by the parties
thereto.12 qual value does not mean exactly equal value $ (! accepted in
Springboard v Robson that, if the scheme assigned value within bands %1++ $ 12+
points, for e4ample, or 81+ $ 88) as in Springboard&, then the placing of two Bobs
within a single band %in Springboard, at 81+ and 821& was sufficient to render
them equivalent for the purposes of s.1%2&%b&.1/ Kobs will also be taken to have
been rated as equivalent if it would have been given the same value under the
scheme but for the fact that different values were assigned, according to se4, to the
same levels of effort, skill and decision$making, etc. -n order that an employee is
entitled to claim under s.1%,&, the Bob evaluation scheme in question must have
been analytical in form %that is, it must have considered Bobs under various
subheadings, such as skill, effort and decision$making, rather than comparing
them in the round18&. (n applicant can only rely on a discriminatory Bob
evaluation scheme to claim equal pay if she claims that the scheme directly and
obviously discriminated by assigning different values to the same levels of skill,
effort, decision$making etc according to whether the Bob$holder was male or
female.
7ourt interpretation?
-n order to succeed in a claim based on a %non$discriminatory and analytical& Bob
evaluation scheme, the scheme must have been accepted by both sides %employer
and employees or representative trade union& but need not actually have been
applied to the pre$e4isting pay structures. 3o, for e4ample, in OBrien v Sim-
Chem Ltd, the Gouse of Dords found in favour of the applicant women whose Bobs
had been rated as equivalent to those of their male comparators, but whose
employers had failed to implement the new structure because of the Fovernments
income policy.1, 9verturning the decision of the 7ourt of (ppeal, their Dordships
ruled that the right to equal pay vested at the moment when the conclusion of
equal value was reached. =hether or not the scheme was ever applied was an
irrelevance. (nd in Arnold v Beecham Grop Ltd, the applicants claim was
accepted by (! despite the fact that the Bob evaluation scheme which had rated
her Bob as being of equivalent value to that done by her comparator had proven too
controversial to provide the foundation for a new pay structure, and so had been
left aside by employer and trade union. (lthough an equivalent value equal pay
claim required a completed Bob evaluation study and although this, in turn,
required that the parties involved in it had accepted it as valid, it did not require
that they subsequently agreed to use it as the basis for pay negotiations.1.
( successful claim for equal pay for work of equal value required, until 1))., the
report of an independent e4pert. !he q'( provided that a tribunal could not
find in favour of an q'( claimant unless it had received the report of an
independent e4pert on the issue of the relative value of the Bobs of the claimant
and her comparator%s&.1* 3ince 1)). tribunals may determine the question of
value, whether in favour of or against the interests of the applicant, without the
report of an independent e4pert.11
!he problems which may arise under this approach were highlighted, prior to the
passage of the amending legislation, by the decision of an industrial tribunal
decision in Cato v !est "idlands Regional #ealth Athority.1) -n that case the
independent e4pert felt unable to reach a conclusion on the relative value of the
Bobs done by an administration officer and her comparator technical officer. Lather
than appoint another e4pert the industrial tribunal took the view that, under the
qual 'ay Directive, it was entitled to decide an equal value claim absent the
report of an e4pert. !he tribunal devised a Bob evaluation procedure using paired
comparison under si4 factor headings %basic educational requirements> necessary
training and e4perience> technical knowledge and organisational skills> degree of
personal autonomy, responsibility, initiation, etc., required> physical and mental
demands including time constraints and coordination requirements> and number of
reportees and grade of person to whom Bob holder reported&, took evidence from
the applicant and her comparator over a period of one$and$a$half days, and
decided that the comparators Bob was more valuable than that of the applicant.
!he tribunal may have come to the same conclusion as an independent e4pert
would have. 2ut without the opportunity to observe the applicant and her
comparator at work and without training on the techniques of Bob$evaluation
%much less, gender$neutral Bob evaluation&, it is hard to view the tribunals
determination of relative value as anything other than a shot in the dark. 3uch
untrained and uninformed decision$making is much more likely to rely upon
stereotypical assumptions about the relative value of male and female Bobs than is
a more rigorous approach. q'( cases are not heard by specialist tribunals and
such is the relative rarity of equal value cases that employment tribunals hearing
such claims will rarely have any e4perience of the q'(, much less of the finer
points of Bob evaluation.
(ssuming that an independent e4pert is appointed in an equal value claim, the
tribunal may not determine the question of value until it has received the e4perts
report. -t may reBect the report if, either on the application of one or other party or
of its own accord, it decides that the report is unsatisfactory or its conclusion one
which . . . could not reasonably have been reached,2+ in which case it should
commission another. 3uch a course of action is rare indeed, however, leading as it
would to yet further delays.21 -n any event, the tribunal is not bound by the report
and may decide to accept or reBect the e4perts conclusions regarding value, taking
into account if it will any evidence put forward by e4perts commissioned by the
parties themselves.22 9nce the tribunal has received the report and decided on the
issue of value it will either determine the case or, if the employer puts forward a
material factor defence under s.1%/&, consider it at this stage. -t is to the
employers material factor defence that we now turn.
!he employer confronted with a tribunal finding that the equal pay claimants
work is like, rated as equivalent or of equal value to that done by her
comparator%s& %or with the prospect of an equal value finding&, may claim, under
s.1%/& of the q'(, that the variation Iin payJ is genuinely due to a material
factor which is not the difference of se4.
!his appears relatively straightforward but the q'( pre$dated the 3D(s
interpretation of discrimination in terms of the indirect %disparate impact& as well
as the direct %disparate treatment& models. =hile early decisions often reBected the
possibility of reading a prohibition on indirect discrimination into the q'(, (!.
ruled, in $en%ins v &ingsgate, that differently impacting practices were subBect to
the same tests of Bustification under the q'( as applied under the 3D(.2/
Difficulties in interpretation %see, in particular, the decisions of (! in Reed v
Boo'er, BCC v( Smith and )nderby v *renchay #ealth Athority and of both (!
and the 7ourt of (ppeal in Ratcli++e v ,or%shire CC& led to the Gouse of Dords
decision in Ratcli++e in which their Dordships ruled that s.1%/& q'( must be
interpreted . . . without bringing in the distinction between so$called "direct# and
"indirect# discrimination made by s.1 3D(.28 !heir Dordships appeared to be
attempting to avoid the situation in which a woman, having established that she
was paid less than a suitable comparator, was then put to proof that the pay
differential was the result of discrimination. !he burden of proof is on the
employer to show that the factor relied upon to e4plain the difference in pay is
not the di++erence o+ sex. Fiven this burden of proof, the better view is that it is
for the employer to prove that the factor relied upon is not the difference of se4 in
the sense both that it does not discriminate directly as between men and women
%as would a pay difference which depended upon the status of fatherhood, or
membership of the Mreemasons& and that?
%i& it does not have any disparate impact as between the se4es %as, for e4ample,
would the reward of full$time work or, in most cases, seniority or continuity of
employment& or, if it does,
%ii& reliance upon it is nevertheless Bustifiable in line with the tests laid down by
the
7K in Bil%a-&a+has, Rinner-&hn, -an+oss and .im'.2, !hese cases are
discussed in chapter . but briefly they require, in order that a disparately$
impacting pay practice be Bustified, that it can be shown to? correspond to a real
need on the part of the undertaking, IisJ appropriate with a view to achieving the
obBectives pursued and IisJ necessary to that end.2. =here the reward of
particular factors can be shown to impact disparately by se4, reliance upon them
will not be regarded as obBectively Bustified unless the factors rewarded were
important to the particular workers ability to perform their Bobs effectively.2*
!he maBor weakness of the q'( is that it reacts to a systemic problem in an
individual way. ven as an individualistic, complaints$driven model it is flawed
for reasons set out above. 2ut its even more significant flaw is that it imposes an
individual, legally highly comple4 solution on a problem of systemic pay
discrimination. 7omparisons can be made only within, rather than between,
workplaces, and no proactive approach is required of employers. !his e4plains in
part the particularly bad position of part$time women workers.
What is the purpose of the equal pay questionnaire?

!his questionnaire is intended to help individuals who believe they may not have
received equal pay to obtain information from their employers to find out whether
this is the case and, if so, why. !he information should help to establish key facts
early on and make it easier to resolve any disputes in the workplace. -f the
complainant decides to take a case to an employment tribunal, the information
should enable the complaint to be presented in the most effective way and the
proceedings should be that much simpler because the matters in dispute have been
identified in advance. !he key purpose of questionnaire is to help employees
obtain relevant information in order to establish weather they are receiving equal
pay, and if not, the reasons for any differences or discrepancies.
8

6nder 3ection *2 of the qual 'ay (ct 1)*+ a person is entitled to write to her
employer asking for information that will help her establish whether she has
received equal pay and if not, what the reasons for the pay difference are. !here is
a standard questionnaire form which can be used to do this. !he focus of the
questionnaire is on establishing whether she is receiving less favourable pay and
contractual terms and conditions than a colleague or colleagues of the opposite
se4, and whether the employer agrees that she and her comparator are doing equal
work. !he woman can send the questionnaire to her employer either before she
files her claim with the mployment !ribunal or within 21 days of doing so. !here
is no statuary obligation on the employer to respond on equal pay questionnaire
served on them, the replies given are admissible in evidence. !he legal effect of
questionnaire is that a failure to replay or the replay is incomplete, employers has
to give reasons in employment tribunal on what grounds he was unable to replay .
-f the woman takes a case to the mployment !ribunal, the information provided
by her employer should enable her to present her claim in the most effective way
and the proceedings should be simpler because the key facts will have been
identified in advance. -f her employer fails, without reasonable e4cuse, to reply
within 1 weeks, or responds with an evasive or equivocal reply, the mployment
!ribunal may take this into account at the hearing. !he mployment !ribunal may
then draw an inference unfavourable to the employer, for e4ample, that the
employer has no genuine reason for the difference in pay.
,
-f the case is been taken to the mployment !ribunal, the information provided by
her employer should enable her to present her claim in the most effective way and
the proceedings should be simpler because the key facts will have been identified
in advance. -f her employer fails, without reasonable e4cuse, to reply within 1
weeks, or responds with an evasive or equivocal reply, the mployment !ribunal
may take this into account at the hearing. !he mployment !ribunal may then
draw an inference unfavourable to the employer, for e4ample, that the employer
has no genuine reason for the difference in pay.
.
!he uropean 7ourt of Kustice has held that pay systems must be transparent.
!ransparency means that pay and benefit systems should be capable of being
understood by everyone %employers, employees and their trade unions&.
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Dynda, (. 7. Eacdonald, quality, diversity and discrimination, 7-'D publishers, 2++8, p. *1
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Dynda, (. 7. Eacdonald, quality, diversity and discrimination, 7-'D publishers, 2++8, p. *1$*)
mployees should be able to understand how each element of their pay packet
contributes to total earnings in a pay period. =here the pay structure is not
transparent, and a woman is able to show some indication of se4 discrimination,
the burden of proof switches to the employer who then has to demonstrate that the
pay system does not discriminate.
mployers have to keep records that will allow them to e4plain why he or she did
something, showing clearly what factors he or she relied on at the time that the
decision on pay was made. mployers have to be aware that employees may bring
complaints or make enquiries about pay decisions which were taken many years
previously, since when the person who took the decision may have left the
organisation. Mor this reason it is important for employers to keep records that
may, in the future, help them to e4plain why pay decisions were made.
*
-ts necessary to balance the ideal of transparency with the rights of individual
privacy. !he equal pay questionnaire cannot be used to require an employer to
disclose confidential information about other employees, unless the mployment
!ribunal orders the employer to do so. ( woman can use the questionnaire to
request key information and it is likely that in many cases an employer will be
able to answer detailed questions in general terms, while still preserving the
anonymity and confidentiality of employees. Eostly the information requested is
not confidential but some information, such as the e4act details of a comparators
pay package, may be confidential to that person. 'ersonal data is protected by the
Data 'rotection (ct 1))1 and can only be disclosed in accordance with data
protection principles. 'ay records will usually be personal data covered by the
Data 'rotection (ct. Eoreover, other issues such as ethnic origin and medical
details are sensitive personal data to which particular safeguards apply. !he
disclosure of confidential information in the employment conte4t is also protected
by the implied duty of trust and confidence owed by an employer to an employee.
1
!he 97 has produced a guidance note that e4plains an employers legal
obligations when responding to an equal pay questionnaire or to a request for
information during the course of tribunal proceedings. 6nder the !rade 6nion and
Dabour Lelations %7onsolidation& (ct 1))2 an employer is under a duty that on
request they have to disclose to a recognised trade union, information to enable
constructive collective bargaining. -nformation about pay and terms and
conditions of employment generally comes within the duty to disclose, that duty
applies only to information for collective bargaining. -t is a good practice for
employers who do not recognise trade unions to communicate regularly with their
workforce and, where appropriate, their representatives.
)
*
http?55www.equalities.gov.uk5pay5updateNquestion.htm
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http?55www.equalities.gov.uk5pay5updateNquestion.htm
Code of Practice
!he equal opportunities commission %97& produced a revised 7ode of 'ractice
on qual 'ay, which was implemented on 1 December 2++/. !he code is not
legally binding on employers, but failure to act on its provisions could be taken
into account by the employment tribunal. !he 7ode of 'ractice on qual 'ay
recommends an equal pay review as the best means of ensuring that a pay system
delivers equal pay. 7ompleting an equal pay review is, therefore, the best way of
ensuring that they are complying with the need to eliminate unlawful
discrimination in pay system. =hatever kind of equal pay review process is used it
should include.
1+
7omparing the pay of men and women that weather they are doing equal work.
mployers have to check for one or more of the prospects, like work, work rated
as equivalent> work of equal value as these checks are the foundation of an equal
pay review to identify any equal pay gaps between woman and man employee and
eliminate those pay gaps that cannot satisfactorily be e4plained on grounds other
than se4. !hese features are the same, regardless of the siOe of the public body and
a pay review that does not include these features cannot claim to be an equal pay
review. qual pay reviews are not simple a data collection e4ercise but entail a
commitment to put right any se4$based pay inequalities. 'ublic authorities have to
consult with employees and where possible should work in partnership with trade
unions when carrying out equal pay reviews.
11
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Dynda, (. 7. Eacdonald, quality, diversity and discrimination, 7-'D publishers, 2++8, p. *)
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http?55www.eoc.org.uk.P1/.1/*.212.825sitearchive5eoc5'DM5lawNcodeNofNpractice.pdfQ