Equal pay in practice checklist 3
What do we mean by 'equal value'?
Under the Eqality Act 2010 employees an employee may claim equal pay with a comparator of the opposite sex where they are in the same employment and are doing equal work.
Equal work can be:
- The same, or broadly similar (known as like work)
- Different, but which is already rated under the same job evaluation scheme as equivalent (known as work rated as equivalent)
- Different, but which would be assessed as equal in value in terms of demands such as effort, skill and decision-making (known as work of equal value).
There are specific provisions and procedures for determining equal pay claims between women and men. However it is also unlawful to discriminate in pay arrangements and other terms of employment in relation for example to race, disability, sexual orientation and the same principles would apply. For further information about pay discrimination on grounds other than sex see What equality law means for you as an employer: pay and benefits.
The key point about equal value is that very different types of jobs can turn out to be of equal worth or value when analysed in terms of the demands made on the employee. The examples below show the breadth of comparisons that have been made in past cases. The golden rule is not to assume that jobs that are of different types (e.g. manual and administrative) cannot be of equal value.
Equal pay claims can be made on the basis of work of equal value with a comparator both within a particular pay/grading structure and across different structures or across departments. Equal value is likely to be relevant where men and women, (or white and minority ethnic employees, disabled and non-disabled etc) are in the same employment but do different types of work. In the context of equal pay law, ‘same employment’ has a particular meaning and for details it is worth checking the Code of Practice on Equal Pay (see Equality Act Codes of Practice). Broadly speaking it means that the woman and her comparator are employed by the same or an associated employer either at the same workplace or in different workplaces but under common terms and conditions.
How do you find out if there is a problem?
The comparison to be made in an equal value claim is similar to a mini-job evaluation exercise. The reference in the Act to 'effort, skill and decision-making' is intended as an example of the sort of criteria, commonly called 'factors', found in conventional job evaluation schemes. Other factors to consider would be training requirements and working conditions for example. The most reliable and objective approach you can take to assessing whether your employees are doing work of equal value is to use an analytical (i.e. factor based) job evaluation scheme, covering all your employees, that is designed and implemented to take account of equal value considerations and of your specific job population. If you do not operate such a scheme you should seriously consider introducing one.
If you judge that it is impractical for you to introduce a job evaluation scheme covering all employees, then you could estimate equal value between jobs not covered by the same job evaluation scheme. This could vary from a small number of, for example, senior managers, to all employees, where you have no job evaluation at all. We look at some possibilities under Action.
The question of whether two jobs are of equal value involves a weighing and balancing between the features of different jobs. Examples of claims between different jobs, which have been successful at tribunal or settled in favour of the applicant(s) include:
- Primary school classroom assistant - library service driver messenger
- School nursery nurse - local government architectural technician
- Wholesale news distribution clerical assistant – warehouse operative
- Cook – shipboard painter
- Head of speech and language therapy service – head of hospital pharmacy service
- Nursing home sewing room assistant – plumber
- Motor industry sewing machinist – upholsterer
- Canteen workers and cleaners – surface mineworkers and clerical workers
What lies behind the differences?
The concept of equal value is intended to ensure that when employers set rates of pay they take account of all the significant demands of jobs done by both female and male employees. However you choose to assess job demands you will need to ensure that you measure fairly all the significant features of jobs typically undertaken by women, (for example, interpersonal skills, manual dexterity, responsibilities for customers, clients or members of the public) as well as those of jobs done by men (for example managerial decision making, physical effort, adverse working conditions). It is important to avoid stereotyping some kinds of work that are traditionally done by women (eg caring) as being of low value, or involving less skill or effort or decision-making than jobs that have traditionally been done by men (eg mechanic).
What else do you need to be aware of?
Failure to implement a job evaluation scheme
If a job evaluation scheme has been completed but has not been implemented, for whatever reason, then employees whose jobs have been rated as of equivalent value to employees of the opposite sex employed by you or by an associated employer may be entitled to equal pay.
The Independent Expert
There are special employment tribunal rules for the hearing of equal pay claims that are based on equal value, and these may involve the appointment of an Independent Expert who helps assess the value of the jobs being compared.
What is equal?
Case law suggests that unless there is 'an overall measurable and significant difference' between the demands of the jobs being compared they will be deemed of equal value. Small differences will not prevent the jobs from being equal in value.
- In Wells & Others v F Smales & Son (Fish Merchants) Ltd 10701/84-10715/84, the tribunal found the jobs of all the applicants to be of equal value to the comparator even though the Independent Expert had said that five of the fourteen applicants were not equal, albeit by small margins. The tribunal said that the applicants scored so closely that the differences between them and the comparator were not relevant and made no material difference.
- In Southampton and District Health Authority v Worsfold EAT 598/98 a speech therapist claimed that her work was of equal value to that of a male clinical psychologist who worked for the same employer. The Independent Expert found a points difference of less than 5% between the applicant and comparator jobs. However, the tribunal concluded that there was no measurable and significant difference between the jobs under consideration. Their conclusion was supported by the evidence of the Independent Expert who, under cross-examination, admitted that if he, as a manager, had been responsible for grading the jobs, the difference between them would not have led to any difference in grading.
- Lawson v South Tees HA 17931/87
Equal value can also mean greater value. In Murphy v Bord Telecom Eireann  IRLR 267 ECJ, the European Court of Justice decided that the right to equal pay for work of equal value did not only apply to situations where the work was of exactly the same or very close value, but also applied to situations where the woman was being paid less for work of greater value. In such a situation you would have to give the woman parity with her male comparator, but you would not have to pay her more than him.
Equal value does not mean that a woman is entitled to a proportion of her comparator's pay which is equivalent to the proportionate value of her job compared to his. So, for example, you would not have to pay a woman 70% of her comparator's pay on the grounds that her job is shown to be 70% of the value of his job.
The Commission's Equal Pay Audit Kit contains advice on assessing equal value which suggests a number of possible methods for estimating equal value. It should be noted, however, that none of these are an acceptable alternative for a rigorous job-evaluation-based approach to assessing equal value.
To help identify sample jobs for any of the methods suggested:
- You may first find it helpful to set out your pay structures or pay rates on a chart
- Choose jobs that are predominantly performed by one sex or the other, rather than mixed gender jobs
- Identify likely vulnerabilities – jobs performed mainly by women (or men) which you suspect may be under (or over) valued, compared to those performed mainly by employees of the opposite sex.
Possible methods for estimating equal value include:
- If you have two or more job evaluation schemes covering all, or nearly all, your employees – use the more generic job evaluation scheme to evaluate a sample of jobs covered by other scheme(s).
- If you have a number of separate grading (and pay) structures, at least one of which is based on job evaluation – use the job evaluation scheme to evaluate a number of jobs outside its normal remit.
- If you have no job evaluation, estimate equal value by using your grades based on job profiles or a classification system.
- If you have no formal grading structure, or more than one formal structure – estimate equal value by using levels in a competence framework (either NVQ/SVQ or an in-house system)
- If you have no job evaluation system, but you do have clear job families or other occupational group hierarchies – estimate equal value by matching those in equivalent positions in different job families or occupational hierarchies.
If you do not fall into any of the above categories then apply an equal value spot check to estimate whether the jobs are equal in value. The equal value spot check should involve a systematic assessment of the demands of the jobs under headings such as effort, skill, decision, and responsibility.
Assessments of job demands carried out by only one or two people (e.g. line manager, personnel officer) can result in biased outcomes. You can reduce this risk by involving people with broad knowledge of jobs across the organization and ensuring that they receive training and guidance on equal value considerations.
Transparency is a key feature of tackling equal pay problems.
A transparent pay system is one where employees understand not only their rate of pay but also the components of their individual pay packets, including the way in which the demands of their jobs have been assessed. A transparent pay system avoids uncertainty and perceptions of unfairness and reduces the possibility of individual claims.
If a pay system, or any part of it, is characterised by a total lack of transparency, the burden of proof is on the employer to show that the pay practice is not discriminatory. In respect of equal value, 'transparent' means that information about how job demands have been assessed and how this assessment results in the rate of pay for the job.
Whilst every effort has been made to ensure that the advice given in this note is accurate, only the courts and tribunals can give authoritative interpretations of the law.
Back to the Equal pay in practice home page.