Chapter 16Employing labourAlso important in these days, where outsourcing of
public services is common, workers employed by a private
contractor can compare themselves with other persons
still employed by a local authority, as the House of Lords
decided in Ratcliffev North Yorkshire County Council
(1995). This ruling may put off some private contractors
who might have tendered for council services, intending
to do the job more cheaply by cutting wages.
Reference to an employment tribunal
There is no qualifying service required for claims for
equal pay.
The effect of a successful claim is twofold. For the
future, the complainant has a contractual entitlement to
the higher rate of pay or other contract term enjoyed by
the comparator. The tribunal can also award compensa-
tion in respect of the disparity to date. There is no actual
financial limit on the amount which can be awarded,
so that if, say, the disparity in net pay were £10,000 per
annum at the commencement of proceedings and the
case were to be heard one year afterwards, the amount
awarded could be as much as £30,000.
Equal pay questionnaires
In regard to the possibility of making an equal pay
claim, an employee who believes she may not be receiv-
ing equal pay can use a questionnaire introduced by the
Employment Act 2002 to request key information from
the employer when deciding whether to bring an equal
pay claim. If it is decided to go to a tribunal, the infor-
mation will be admissible as evidence and will help the
claimant to formulate and present a case. There is no
duty on the employer to reveal the actual salaries of
the comparator(s). The employer has simply to state
whether he or she agrees that the claimant is paid less
than the comparator(s) and why there is a difference. If
the employer disagrees that the claimant is paid less, he
or she must state why there is disagreement. A tribunal
may draw inferences from a deliberate refusal to answer
or from an evasive reply. This includes an inference that
the employer is contravening the implied equality clause
in the claimant’s contract.
The Employment Tribunals (Constitution and
Rules of Procedure) (Amendment) Regulations
2004 (SI 2004/2351)
These regulations contain at Sch 6 the Employment
Tribunals (Equal Value) Rules of Procedure, which are
in force. They give employment tribunals powers to insist
on the early exchange of relevant information, facilitate
the fact-finding process and penalise parties who do not
comply with tribunal directions.
Of particular importance are powers under which
employers can be ordered to grant access to their premises
to an expert where one has been appointed by the tribunal
or the claimant or their representative where no expert has
been appointed in order to question certain employees,
e.g. alleged comparators.Time limits for claims
Proceedings may be brought at any time during the
employment or within six months after it ends. The
maximum time limit for the award of arrears of pay is
six years.
As regards the period of six months, this may be
extended where the claimant has worked under, say, a
series of fixed-term contracts forming a stable employ-
ment relationship, each contract being for unequal pay:
the six-month limit runs from the end of the last of
such contracts. The period may also be extended where
the employer has deliberately concealed the possibil-
ity of a claim. Here time runs from when the claimant
discovered the facts or could with reasonable diligence
have discovered them. Where the claimant was under
a disability in terms of bringing the claim, as where the
claimant was a minor at the time, the period runs from
the end of the disability, i.e. from reaching 18.
The House of Lords ruled in Powerhouse Retail Ltd v
Burroughs(2006) that, where an employee’s employ-
ment has been transferred under TUPE 2006, the time
for making a claim in respect of employment with the
previous employer runs from the date of the transfer,
not the eventual end of the employment with the trans-
feree employer.Community law. It is important to note that any gaps or
exceptions in UK legislation can be overcome by resort
to Community law. Article 141 of the Treaty of Rome
is relevant since it establishes the principle that men
and women are entitled to equal pay for work of equal
value.
As we have seen in Macarthys Ltdv Smith(1979), it
was decided that where a man who leaves his employ-
ment is replaced by a woman who receives a lower rate
of pay, the woman cannot make a claim under UK
legislation based on the former male employee’s pay, but
she can do so under Art 141 (and note also the decision
in Hallam Diocese Trusteev Connaughton(1996)).483