The right to equal pay for equal work between men and women is set out in Article 141 of the EU Treaty. In the UK, it is found in the Equality Act 2010. The Act implies a sex equality clause into everyone’s contract of employment, modifying any term that is less favourable to someone of the opposite sex.
The Equality Act 2010 provides three ways for a claimant to show that their work is equal to that of their comparator – if they are engaged in
In the absence of a job evaluation scheme, the Tribunal has to decide whether the claimant’s and the comparator’s jobs are of equal value, taking into account the nature of the work, the skills necessary to do it and the level of decision-making attached to the job. This is a question of fact for the court. The Tribunals will usually ask an independent expert to do an evaluation of the two jobs.
Aynsley and Others v North Tyneside Primary Care Trust [2009] All ER (D) 125 (May).
Rule 34 of the Employment Tribunal Regulations 2004, provides so far as material: “(1) Parties may apply to have certain judgments and decisions made by a tribunal or a chairman reviewed under rules 34 to 36. Those judgments and decisions are – (a) a decision not to accept a claim, response or counterclaim; (b) a judgment (other than a default judgment but including an order for costs, expenses, preparation time or wasted costs); and (c) a decision made under rule 6(3) of Schedule 4; and references to ‘decision’ in rules 34 to 37 are references to the above judgments and decisions only. Other decisions or orders may not be reviewed under these rules.”
The employees were all female grade G nurses. They were members of a group of 214 claimants forming part of a multiple equal pay claims action against the employer. On 8 February 2008, the employer was ordered to supply information about potential comparators by 12 March (orders (2) to (5)). The employer failed to comply with orders (2) to (4) by the requisite date. On 22 April, the judge made an unless order. The employer filed a limited response but it was common ground that the information failed by a large margin to comply with the requirements of the order of 8 February. The evidence established that the employer was unable to find some missing documents.
On 27 June, further documents were provided and by 16 July, it had substantially complied in particular with relation to orders (2) and (4). The judge struck out the employer’s response in the proceedings for non-compliance with the unless order, having considered the material provisions of the Civil Procedure Rules 1998, SI 1998/3132. The employer applied to the tribunal for a review of the strike-out. Under r 34 of the Rules, the judge allowed the order to stand. He had proceeded on the basis that the employer had provided no further disclosure since the previous hearings. The employer appealed.
It fell to be determined whether the application for a review of the strike out order fell within r 34 of the rules, in particular, whether r 34 applied to cases where the default in question, namely the failure by an employer to provide a response to an unless order, had been on the part of the respondent to the proceedings. It further fell to be considered whether the judge had erred in allowing the strike-out order to stand.
The appeal would be allowed.
Collin & Hobson PLC v Yates [2014] UKEAT 0066 14 0309
The EAT concluded that the Claimant’s work was of equal value to that done by a male comparator. The Appellant failed to make out the genuine material factor defence. The Appeal was then dismissed.
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