The Equality Act 2010 387Basic pay should not differ merely because the men do different hours, such as working
shifts. If men work shifts they can be paid extra by means of a shift allowance. But if both
men and women work different hours, such as shifts, the basic pay of shift workers can be
higher than that of non-shift workers.
Work rated as equivalent
Work will be rated as equivalent only if a properly conducted job evaluation scheme has
found that the work is equivalent (s. 65(2)).
Work of equal value
Work done by a woman is of equal value to that of a male comparator if the demands made
on the woman are comparable with the demands made on the male. Matters such as effort,
skill and decision-making are taken into account (s. 65(6)).
Defence of genuine material factor
Section 69 gives an employer a defence if he can prove that the different treatment of the
woman was due to a genuine material factor. If this can be proved, the equality clause will
not take effect. Any such factor must be a proportionate means of achieving a legitimate
aim and must not directly or indirectly discriminate against women. Many matters such
as qualifications, long service increments, responsibility allowances and different places of
work might be genuine material factors. A long-term objective of reducing inequality
between men’s and women’s terms of work is always to be regarded as a legitimate aim.
Where a man had been downgraded and his pay protected by being ‘red-circled’ this could
be a genuine material factor as long as the red-circling was not done in a discriminatory way.
Schedule 9 allows an employer to put an employee at a disadvantage in relation to
another employee on the grounds of length of service. If the employee in question has more
than five year’s service then the employer must show that he reasonably believes that doing
so fulfils a business need. The employer does not need to show this if the disadvantaged
employee has five years or less service.
Discussions about pay and publishing information
Section 77 applies where a term of the contract of employment tries to prevent employees
from discussing their pay with others, where the purpose of the discussions is to discover
a connection between a difference in pay and a protected characteristic. If an employer
Hayward vCammell Laird Shipbuilders Ltd (1986) (House of Lords)A female caterer wished to be compared to male painters and joiners working at the same
shipyard. As apprentices the caterers, painters, thermal insulation engineers and joiners
had all been paid the same rate. After the apprenticeship the caterer was paid a lower
hourly wage, although she had better conditions on holidays, meal breaks and sick pay.
She applied to be paid the same hourly wage as the men.
HeldThe applicant won, even though her contract of employment, when viewed overall,
was already as favourable as that of the men. As the woman’s work was broadly similar to
that of the men she was entitled to an equal rate of pay.
CommentThe House of Lords indicated that the men would be able to bring a claim to
gain the better conditions on holidays, meal breaks and sick pay which the woman enjoyed.
So there was bound to be some degree of leap-frogging.