Equal pay legislation was enacted at a time when it was common for employers openly to pay different rates of pay to men and women doing the same job. Although such overt discrimination is less common, the following case shows how equal pay claims can still arise in quite ordinary situations.
Relevant legal principles
An employer can only pay a man more than a woman for doing equal work if it can prove that the difference in pay is due to a material factor. The burden is on the employer to prove that the material factor relied on is the real reason for the difference in pay, that it is significant, and that it is not based on sex.
The Claimant was employed at a Wakefield-based care provider from 1 February 2016 until she tendered her notice in January 2018. Initially, her role was as office administrator but she had several different roles becoming finance administrator/financial manager at a salary of £18,000.
When the Claimant submitted her resignation, the company decided that to ensure it remained a family business it would appoint KS, who was the partner of the daughter of one of the directors. He was offered a salary of £21,500 – £3,500 more than the Claimant was paid.
During the Claimant’s notice period, KS shadowed the Claimant, who, the tribunal agreed, effectively trained him to take over from her. At tribunal, the Claimant produced a detailed job description itemising the tasks she carried out, which KS agreed broadly corresponded with his daily duties, placing him in a like-for-like role.
When the Claimant learned that her replacement was being paid more than her, she submitted a grievance which was unresolved at the end of her notice.
The Claimant brought a claim in the ET under equal pay legislation.
The company attempted to justify KS’s higher pay by arguing that KS’s role was senior to the Claimant’s and his appointment was strategic, as KS was recruited as a potential successor eventually to the director therefore preserving the family business. However, the tribunal decided that during the training period the Claimant and KS were doing the same job.
In addition, the ET did not accept the company’s argument that it was necessary to pay the higher salary to secure KS’s acceptance of the job offer, deciding that there should have been no difficulty in recruiting at a lower rate. The role was not advertised externally and no steps were taken to approach alternative candidates.
The Claimant was awarded compensation of £390.40 in respect of her notice period.
Ms J Broom v Alternative Care Ltd Case No: 1808548/2018
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