386 Chapter 14Employment (2): Discrimination and health and safety
Differences in the work of the woman and the male comparator must be practical rather
than merely theoretical.Shields vE. Coombes Ltd (Holdings) (1978) (Court of Appeal)A female betting shop counterhand was paid 92p per hour, whereas the male comparator
counterhand, working in the same shop, was paid £1.06 per hour. The employer argued
that their work was not broadly similar because the betting shop was in a rough area and
the male had the responsibility of sorting out any trouble.
HeldThe employer’s argument failed. The male’s additional duties were of no practical
importance because, in the previous three years, there had been no trouble for the male to
sort out. So the woman was entitled to equal pay and conditions.Capper Pass vLawton (1976) (House of Lords)A woman who cooked 10 –20 lunches for directors wished to be compared to two male
assistant chefs who cooked 350 lunches for the general work force. The directors ate in
one sitting, whereas the male assistants had to prepare six sittings a day, two at breakfast,
two at lunch and two at tea. The woman worked alone in the kitchen for 40 hours a week.
The two male assistants worked 45 hours a week and were supervised by a head chef.
HeldThe woman’s work was broadly similar to that of the male assistants and so it was
like work. The woman was therefore entitled to the same rate of pay as the men.The need for a male comparator
A woman can bring a claim under the Act only if she can show that she has been treated
less favourably than a male working for the same employer or for an associated employer.
An employer is associated if one person or company controls both employers. It is therefore
necessary to find a real, not hypothetical, comparatorof the opposite sex. It does not matter
that the comparator works in a different place, as long as common terms and conditions are
observed at both places.
In British Coal CorporationvSmith (1996)female canteen workers and cleaners, work-
ing at 47 different places, were allowed to compare themselves with male surface workers
and clerical staff, working at four different establishments. The House of Lords held that the
terms and conditions did not have to be identical, rather they had to be substantially com-
parable on a broad basis. It is for the woman bringing a claim to choose the comparator, to
prevent the employer having a token male who is paid less, and it is possible to choose a
previous employee.
Once it has been shown that the woman does like work, work rated as equivalent or
work which is of equal value to that of a man, s. 66(1) provides that the woman’s contract
of employment should be deemed to include an equality clause. Such a clause would
require the terms of the woman’s contract to be changed so that they became no less
favourable than similar terms in the male comparator’s contract.Like work
Section 65(1) provides that a woman does like work with that of a man only if her work is
the same or of a broadly similar nature to that of the man. Any differences between what
she does and what the man does must not be of practical importance in relation to the terms
and conditions of employment. Both the frequency with which any differences occur in
practice, as well as the extent and nature of the differences, should be considered.