Equal pay claims must be brought within 6 months of the end of employment or, if the employee has worked on a series of different contracts, from the end of the “stable working relationship”. The EAT in Barnard v Hampshire Fire and Rescue Authority ruled that a promotion to a new managerial role did not break the stable working relationship, given that there was a natural and incremental progression within the same department entirely consistent with the continuity of the relationship. The employee was therefore not out of time to bring equal pay claims in respect of her earlier roles prior to her promotion.
The EAT in Co-operative Group Ltd v Walker has confirmed that an employer’s valid material factor defence to an equal pay claim continued to apply until the employer made a further pay-related decision, or omitted to do so having become aware of a pay disparity. The employer had carried out a job evaluation study identifying a pay disparity in the claimant’s salary, but had successfully established a material factor defence explaining the pay one year earlier. The tribunal considered that this meant the defence had ceased to be relevant at some point part way through the year, but the EAT ruled that the employer’s defence continued to operate until a further decision or omission to decide pay could be identified. On the facts there had been no pay round in the intervening period, and the claimant had not made any request for her pay to be reviewed.
Note that an appeal is due to be heard by the Court of Appeal in July 2020.
In July 2019 the Government published its response to a consultation on extending redundancy protections to those on family leave, but without specifying any particular timetable for doing so.
Currently women on maternity leave are given priority over any suitable alternative vacancies should their role be made redundant. An employer’s failure to offer any such available vacancies renders the consequent redundancy dismissal automatically unfair. The Government has committed to extend this right of priority over vacancies to apply from the point at which the employee notifies the employer – whether orally or in writing – that she is pregnant, until six months after the end of maternity leave (even if the mother does not immediately return to work due to taking another form of leave at that point).
Similar protection will be available for those taking adoption leave. The Government intends also to provide protection for those taking shared parental leave, proportionate to the amount of leave taken and the threat of discrimination, but has yet to determine exactly how this will work. No additional protection will apply to paternity leave.
The Government will also establish a taskforce of employer and family representative groups to make recommendations on improvements to the information available to employers and families on pregnancy and maternity discrimination, and to develop an action plan to facilitate pregnant women and new mothers staying in work.
The Government also published Good Work Plan: Proposals to support families setting out three new consultations on:
- a new right to neonatal care leave from ‘day one’ of employment, with flat rate statutory pay conditional on 26 weeks’ service at the 15th week before the baby is due. Where a newborn is in hospital for neonatal care for at least 2 continuous weeks, the number of weeks, capped at a limit to be specified (suggested options are 2, 3, 6, or 12 weeks), would be added on to the end of maternity or paternity leave. Consultation ends on 11 October 2019.
- whether larger employers (with 250 or more employees) should be required to publish their policies on flexible work and family related leave and pay on their websites, possibly with key information to be included on the government’s gender pay gap reporting portal; the consultation also asks whether and how (all) employers should be required to set out their approach to flexible working in job adverts. Consultation ends on 11th October 2019.
- the case for a potentially radical reform of family leave and pay, including possible changes to paternity, shared parental and maternity leave and pay and their possible replacement with a single ‘family’ set of entitlements, with the aim of encouraging greater sharing between mothers and fathers of leave and childcare responsibilities. The consultation closes on 29th November 2019. The Government is currently evaluating the shared parental leave regime and expects to report on this later in 2019.
The Government Equality Office has published Gender equality at every stage: a roadmap for change, which mentions some of the initiatives above but also confirms plans to consult on a new right to carers’ leave, review the enforcement of equal pay legislation (including consideration of when mandatory equal pay audits could be appropriate), and assess the effectiveness of gender pay gap reporting with consultation on any changes by 2021. The roadmap also mentions the possibility of requiring employers to publish retention rates for employees returning from parental leave.
The Court of Appeal has given two rulings in the long-running equal value claim against Asda, in both cases ruling on preliminary points in favour of the store workers claiming equal pay with distribution depot workers. The claims will now proceed to determine whether the roles are of equal value and, if so, whether the employer has a ‘genuine material factor’ defence (ie, a reason for the pay difference which is not tainted by sex discrimination). Continue reading
The use of length of service as a criterion for pay may indirectly discriminate against women and therefore require objective justification to be lawful (particularly long pay scales are likely to face more of a challenge). However the mere fact that women are clustered at the lower end of a pay scale and men in the same grade are clustered at the higher end is not sufficient in itself to establish that an employer’s use of length of service as a pay criterion puts women at a particular disadvantage. The EAT held in McNeill v HMRC that women were not put at a particular disadvantage as the average pay figures showed no significant differences between pay for men and women in the same pay grade.
The EAT also made clear its obiter view that old case law (Armstrong v Newcastle upon Tyne NHS Hospital Trust), which suggested that an employer could avoid the need to show objective justification if it could show a non-discriminatory underlying reason for any disparity, is no longer good law, following the Supreme Court ruling in Essop v Home Office. Once a claimant can show that a practice puts a protected group at a particular disadvantage, the practice in question must be justified and there is no need first to establish why the protected group is disadvantaged. If followed in other cases, this would make clear that equal pay cases should be approached in the same way as other indirect discrimination cases.
The Fawcett Society has published its Sex Discrimination Law Review, calling for:
The 4th April 2018 deadline for publication of employers’ first year of gender pay gap data is looming, yet over 90% of employers covered by the new statutory duty have still not reported. Many may have deliberately chosen to publish close to the deadline, perhaps in the hope that in the early April deluge their data will slip unnoticed through the net of media attention. Whether this strategy will itself attract negative publicity may depend on whether the GEO goes ahead with its original plan to publish three lists of employers “in early 2018”: those who have reported, those who have “demonstrated that they are on track to report” by registering on the government website (possibly as at 31 January), and those who have not yet registered. Employers who are not yet ready to publish may want at least to register to avoid being on the third list.
On 30 March 2017 the German Parliament (Bundestag) passed the Act to Promote Transparency of Pay Structures (Entgelttransparenzgesetz). The objective of this act is an achievement of the pay equity between men and women, who perform the same work or work of equal value. It is expected that the act will come into force this summer (immediately on the day after its promulgation).
A revised, final version of the non-statutory guidance by Acas and the Government Equalities Office was published on 3 April 2017, available here. Although the GEO had indicated that no substantive changes were expected to the original draft published a few days before formal approval of the final regulations, in fact there are a few significant changes helpfully addressing some of the grey areas highlighted by commentators. Employers currently preparing for the first data capture covering the pay reference period including 5 April 2017 should review the guidance urgently.
On 28 January 2017 Acas and the Government Equalities Office published draft guidance on the new gender pay gap reporting obligation, available here. Although in draft, we understand from the GEO that this is because it pre-dated the Parliamentary approval of the regulations and that no substantive changes are expected to the final version. We also understand that Parliament formally approved the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 on 30 January 2017, without amendment to the final form draft regulations, but these have not yet been published.