Material factors

first_imgRelated posts:No related photos. Previous Article Next Article Material factorsOn 1 Mar 2003 in Personnel Today Possible ComparatorsCompany C‘s HR manager has left acrimoniously and filed an equal payclaim, citing several male comparators. One is the finance director who was ona package £50,000 greater than hers, another is the sales manager who leftseven years ago, and the third is the HR director, who was her boss and who shesays “never did any work but made her do everything”. He was paid£10,000 more than her. Can she take these claims? PM comments: Although the salary gap between the applicant and thefinancial director is great, there is no barrier to bringing a claim. Anemployer used to be able to challenge a claim that looked ludicrous by arguingat a preliminary tribunal hearing that there were no reasonable grounds for theclaim. However, this has now been abolished and the parties must be given thechance to put forward their own evidence. In relation to her own boss, the HR manager can claim she is carrying outwork of equal value. The employment tribunal can either make the assessment, orappoint an independent expert. It may be that the director does not do a lot ofwork, and the expert will look at exactly what is done rather than what is inthe job description. It is often the case that over time jobs change and jobdescriptions are not updated, so it could well be that the HR manager has beendoing all the work. Regular updating of job descriptions and proper staff management appraisalsare all part of preventing this type of claim. Finally, what about the comparator from seven years ago? There is no rulethat says you cannot have a comparator going back this length of time, and in therecent case Kell v Pilkingtons, a tribunal allowed a woman to use acomparator she had worked with eight years previously. Of course it would behelpful to prove that she was employed on work of equal value at this point intime, but if she is successful, she could make a back pay claim to 1976 (whenthe European Court of Justice first established equal pay claims could be takenunder European law) if she has undertaken work of equal value throughout thatperiod. Likewise, with her own boss, she could claim back pay to when they firststarted working together, but she must show that throughout the period she wasundertaking work of equal value. The most effective way of avoiding claims like this is to introduce a jobevaluation scheme free of sex bias (see employers’Law magazine, February 2003).Pauline Matthews is an associate at DLA Equal pay claimCompany A employs one woman and 10 men in its computer repair shop.There is no job evaluation scheme. The female employee has limited ability tomend a range of machines, whereas most of the men can repair a bigger rangethan she can. The company offered to pay for her to attend an NVQ course, butshe said she wasn’t interested. It pays everyone who works there £1,000 extra ayear if they have this NVQ. The female employee knows that one of the men earns£2,000 more than her, and yet she has been there longer. He has the NVQ. Shesays she should be paid the same as him. Pauline Matthews comments: To establish a claim with equal pay, aclaimant has to show that she is employed in like-work or work of equal valuewith a man, or that their jobs have been rated as equivalent under ananalytical job evaluation scheme. If a complainant can establish this, theemployer can then explain the difference in pay if there are relevant genuinematerial factors. In this case, she may argue she is employed in like-work as her job is verysimilar to that done by the men. There are some differences, however, inrelation to the range of machinery that she can mend, and the question thetribunal will ask is, are those differences of practical importance? Indeciding this, they will consider how frequently the men are called on to mendother machines and the importance of the work being done, for example are themachines they mend in for repair every week, and are they high-value machines?If they rarely do these extra repairs and mainly do the same work as her, shecould establish a like-work claim. If she fails a like-work claim, she would probably then make an equal valueclaim. In this case, the tribunal either assesses whether two jobs are of equalworth, or appoints an independent expert to draw up a report. If equal value isestablished, the employer still has the opportunity to explain why the jobs arepaid differently. This is called the genuine material factor defence. A £1,000 pay difference can be accounted for by the fact that the maleemployee has an NVQ. Company A would not have to show the NVQ was necessary tothe performance of the man’s job (although that would be helpful and it is bestpractice to reward relevant qualifications), only that it was a genuine reasonfor the difference in pay and not a sham. If it decided to pay £1,000 to everyone who had Art GCSE, which iscompletely irrelevant to this job, it would be difficult to convince a tribunalthat the reason was genuine – though not impossible. If the applicant shows that the genuine material factor defence isdiscriminatory – and here she may argue that the NVQ is indirectlydiscriminatory as it has a disparate impact on women because, for example, itmay be harder for them to pass this particular NVQ, or it may be harder forwomen to attend the course and undertake the study because of childcarecommitments – then Company A would have to objectively justify its need for theNVQ. This would be difficult if it is not necessary for the job or to give the bestperformance in the job. After the NVQ has been taken into consideration, there is still a £1,000difference in salaries which cannot be accounted for by service, so Company Awould need to dig a little deeper and look for the reasons why there is still adiscrepancy in pay. It could be that the male employee has longer externalexperience. If this were the case, the company would have to demonstrate thatthis is the reason for the difference in pay, and not just a convenient excuse.center_img When a woman is doing the same job as a man but is paid less and is lessqualified, can she bring a claim for unequal pay? Pauline Matthews considersthis and other equal pay issues Pay questionnairesCompany B has two branches, one in Manchester and one in London. Itemploys three lawyers at the Manchester branch, all female. It recentlyrecruited three new lawyers to the London office, one woman and two men. Thenew female recruit was appointed on £5,000 more than her male colleagues andthe male colleagues were appointed on £2,000 more than the Manchester lawyers. One of the Manchester lawyers is a friend of the new female recruit, and shediscovers that the new female is on £7,000 more than her. She threatens toleave, and the company offers her £5,000 per year to stay, which she accepts.The lowest paid female lawyer in the Manchester branch then serves aquestionnaire on the company asking for details of male salaries. PM comments: Although these lawyers are employed at differentestablishments, if common terms and conditions apply or the lawyers areemployed in the ‘same service’, a claim can be made comparing London andManchester pay. It is expected that the Government will introduce equal pay questionnairesin April. At present, sometimes in an equal pay case an applicant will serve asex discrimination questionnaire, as there is no formal equal payquestionnaire. It is possible that in April, given the publicity surrounding the newquestionnaire, many more may be served (the failure to answer or an evasive ormisleading reply to a questionnaire could lead to a tribunal making aninference of discrimination). However, in this case, Company B could refuse to give details of the topfemale lawyer’s salary, as a woman cannot have an equal pay claim with anotherwoman – it has to be with a man – and therefore there would be no requirementto provide this information. However, the lowest-paid Manchester lawyer will discover her male colleaguesin London are earning £2,000 more than her and Company B will need to explainthe pay difference. There may be many reasons, such as the geographicallocation. The company may have paid the men more because they would not leavetheir current jobs without that extra amount, or it may have advertised theposition at a lower salary and got a poor or no response. Whatever the reason,the company must document it at the time so that if a claim is brought, it hasgood evidence for the reasons for the salary difference. Another potential scenario is if the men find out that the new female lawyeris earning more than them and they bring a like-work claim. The company wouldbe arguing that the difference in pay is due to market forces. At the newfemale lawyer’s previous job she could have been on a higher salary, and toentice her Company B had to offer her more again. It would need proof of this.If the company is not in a position to prove this, and the men are successfulin their claim, the Manchester female lawyers could take another equal payclaim comparing themselves to the men on their new salary – by the end of theyear the company could be paying all of its lawyers at the top rate. Beware ofthe leapfrog effect. Comments are closed. last_img