Tughans on employment law and difficult workplace scenarios.

For November 2019, we have asked the employment team at Tughans Solicitors to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

We have two offices in Northern Ireland, and I have responsibility for Human Resource matters in both.  I have recently received a grievance from a female employee, who works as a sales administrator in one office, alleging that she wants the same terms and conditions as a male office administrator in our sister office.  How do I handle it?

You will remember that the right to equal pay is enshrined in legislation under the Equal Pay Act (Northern Ireland) 1970 (“the Act”).  The Act requires an employer to pay a man and woman equal pay for equal work.

It is not necessary that the female sales administrator and the male office administrator undertake exactly the same job role and/or tasks for this statutory obligation to arise.  Rather, it requires equal pay under three main headings where, in this case, the female worker compares herself to her male colleague, namely:-

1. Like Work – this applies where the work of the man and woman is broadly similar and concentrates on the work actually undertaken by each of them.
2. Work rated as equivalent – here you should undertake a job evaluation scheme to assess whether the role of a sales administrator is rated as equivalent to that of an office administrator.
3. Work of Equal Value – When assessment on the basis of either of like work or of work rated as equivalent is not possible, it may be possible to undertake an assessment of the roles considering factors such as the employee’s skills, expertise or decision making in assessing whether the woman’s role is of equal value to that of her male colleague.  Here, the evaluation is of the particular roles actually undertaken by the male and female worker.

It is also worthwhile remembering that if the woman is to succeed in a claim for equal pay, she must find a male comparator who is employed by you, as both the man and woman should be subject to the same employment relationship.  Nor can she point to a hypothetical comparator, although she can use a former male employee as her comparator.  Therefore, I have assumed that the male colleague is actually employed by you and is not a consultant providing services or seconded and subject to a different working relationship.

In addition to the possibility of a claim for equal pay under the Act, the female employee may also allege less favourable treatment on the grounds of her gender.  In cases such as yours however, a claim for equal pay is more common.

In relation to her grievance, you should of course be aware of the application of the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures and the company’s own Grievance Policy and Procedure.  Both should be considered in dealing with this grievance.  It may be that as part of that grievance process, you agree to undertake a job evaluation scheme to assess the roles undertaken by the female employee and that of her chosen male comparator and to be bound by the outcome of that evaluation.

You will appreciate if the job evaluation scheme is undertaken, which then confirms that the female employee’s work is rated as equivalent, or of equal value to that of her male colleague and you fail to implement recommendations or pay her the same as her male comparator, it would be extremely difficult to defend any subsequent Tribunal claim.

There are, however, possible grounds for defending the female employee’s claim, if the pay differential is due to a genuine material factor, which in itself is non-discriminatory.  It may be that your male employee is paid at a higher rate, due to length of service or seniority, for pay protection purposes, for geographical reasons as he is in another office, or perhaps due to a TUPE transfer.