The Equal Pay Act - a tricky situation?

The Equal Pay Act is, as I have said before, quite a difficult piece of legislation to understand. The principle is simple; don’t pay women less than men just because they are women or vice versa. However, putting that in legal language is tricky, to put it mildly.

An example of how even Employment Tribunals get it wrong is a case involving the West Midlands Police force.

The West Midlands is the second largest police force in the UK. They need to respond to emergencies 24 hours a day, 7 days a week. On a typical day they deal with 3,200 incidents and arrest 320 people. To ensure 24/7 coverage, uniformed constables and sergeants work a shift system. Early shift, 7.00 am to 3.00 pm, late shift 2.00 pm to 10.00 pm and night shift 10.00 pm to 7.00 am. A male officer worked this shift pattern, but two female police officers were excused from these hours because of child care responsibilities. They didn’t work nights. Police officers working the full 24/7 shift system were paid a bonus effectively for doing the night shift. The two female police officers who didn’t do the night shift because they had children weren’t paid this bonus and so made a claim under the Equal Pay Act.

Employers have a defence to an Equal Pay claim if they can show that they have a really good reason that explains the pay difference, which has nothing to do with the employee’s sex.

The Employment Tribunal said that there was a really good reason justifying the pay difference but the employer could have paid the claimants as if they had worked nights when they didn’t. It wouldn’t have cost very much and would have eliminated the discrimination. So they found in favour of the claimants.

If this decision was right, it could mean that an employer allowing a woman with children to work part time might have to pay her for full time hours if they could afford it.

Not surprisingly the employer appealed and won. The Employment Appeal Tribunal said that “nothing in the Equal Pay Act requires an employer to deem that women have done what they have not done. The payment of money to compensate for economic disadvantages suffered by those who have childcare responsibilities is not what the Equal Pay Act is about.”

The lesson for employers is if you are gong to pay people well to do the same job, make sure you have a watertight explanation.

Published 19/12/2007. The author of this article is Jon Loney