The on-going case between Asda and its staff highlights that simply paying men and women the same rate for doing the same job is not enough. If an employee can show that the work they are undertaking is of equal value to that of someone of the opposite sex in a comparative role elsewhere in your company, then they could bring a claim for discrimination if their terms and conditions are less favourable. In certain circumstances they may also be able to draw comparisons with staff who are no longer employed in the company.
In the case of Asda, shop floor workers (who are predominately women) have taken the supermarket to court as they are paid less than those who work in Asda’s depots (where the staff are predominantly male). The case is still on-going, but the workers have won the first round in their battle by proving in court that the work undertaken by those on the shop floor is comparable to that undertaken in the depots.
In order to win their claim the staff will still have to prove 3 further stages:
The implications of the case are huge, with estimates that if successful this and similar court action could cost the 4 big supermarkets over £10billion.
So what does this mean for other companies and how can you avoid falling in into a similar trap? In the light of the publicity around the Asda case, companies need to take clear action now to avoid the risk of similar claims.
Look and see if there are roles in your workforce where the pay and benefits are different, but the work might be seen as comparable and of equal value. Under the Equality Act 2010 there are 3 ways that this can be measured:
Don’t just look at pay, as you need to take account of other benefits such as sick pay, annual leave entitlements, pensions and any other benefits that you give to your staff. If you find any issues then address them as a matter of urgency.
If you do find that differences exist in your pay structure, do you have a justifiable reason for why this is? Simply stating that it is down to “market forces” won’t do, particularly in the market itself is tainted by gender bias. Any reason must be “significant and relevant” to be accepted by a court. This could include things like geographical factors, different skills or qualification requirements or possibly “red circled” roles. These are roles where there are historical reasons for the higher rate, such as a transfer into the company, but where the rates have been frozen until others catch up.
You’ll need solid evidence of any reasons given, such as an independent, professionally produced pay survey, as the courts will not accept simple anecdotal reasons. You’ll also need to make sure your evidence goes back 6 years, as this is the maximum time that a claim can cover.
The Equality and Human Rights Commission have set out guidelines on how you can make sure your pay structure is free from gender bias. They recommend that pay structures are:
If you do find yourself in a tribunal having to defend an equal pay claim the court may require you to undertake a mandatory equal pay audit. Therefore it makes sense to undertake your own audit now to help to ensure that you avoid finding yourself in a tribunal in the first place.
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Last updated: 04 February 2019 | © KIS Finance 2018 |