Blog: 17th November 2023, Sarah Lamont, Bevan Brittan

Equal Pay – Recent claims and challenges – where does the risk lie and what can be done to mitigate it?

Equal pay is currently under the spotlight and, in particular, we have seen claims and challenges against councils who have implemented single status and job evaluation schemes (JES), thinking they had taken adequate steps to mitigate equal risk liability in doing so. 

However, equal pay liability can persist even in these cases.  GMB has recently announced it would be launching a major equal pay claim against Sheffield City Council which centres on the use of its JES and, in July this year, Fife Council’s JES was judged “unreliable” by a Scottish employment tribunal in Allan and others v Fife Council.

In the context of single status, there is still the prospect of equal pay claims where employees claim that the JES is discriminatory or "otherwise unreliable" and so should not provide an absolute defence to their equal pay claim. 

Where a council cannot rely on its JES to defend an equal pay claim, it will need to evidence a “material factor defence” (i.e. a good, gender neutral, reason for the difference in pay) if it is to avoid liability.  However, councils will be on the back foot if it’s already been shown their JES is unreliable and/or their practices are inconsistent.  Where there is a lack of evidence supporting decisions, councils will also struggle to persuade a tribunal there is a material factor defence.

The important point for councils to note is that implementation of single status and a valid JES is not the end of the matter. On the contrary, it is just the beginning.  Rhea Wolfson of the GMB has highlighted the pertinent point:

“Everyone thought they had done it . . . But if you take your eye off the ball discriminatory practices creep back in…”

It is fundamental that the integrity of single status agreements and JESs is maintained.  This means robust processes for job evaluation and allocation, including ensuring continued scrutiny of grading decisions. We would recommend councils consider undertaking regular consistency checks in this respect.

Proper record keeping to support all decisions made is also a vital part of evidencing a “reliable” JES (and defending equal pay claims generally).

There may also be a risk of equal pay claims where a claimant’s role has been given an equivalent rating to a comparator role under a JES but the pay terms are nevertheless not equal in some respect.  Risk areas here are where payments are made which are not in line with policy/terms of a single status collective agreement or practices “creep back in” notwithstanding contractual terms or policies (e.g. “task and finish”).

In view of the evident risk which comes with increased scrutiny and potential challenge by the unions (and potentially from other sources), we recommend councils take active steps to consider any equal pay risk areas and pro-actively address any issues uncovered, including ensuring appropriate systems and checks to regularly assess and mitigate future risk. 

Sarah Lamont, Partner, Bevan Brittan

LLG is delighted to offer a new course on equal pay in conjunction with Bevan Brittan which will run on 12 December from 09.30 – 13.00. The course is designed to provide an understanding of equal pay law, the potential areas of challenge in terms of claims and liability, and the practical steps that can be taken to mitigate the risks of equal pay claims arising in this context. The course is suitable for all levels and is designed to equip delegates to take support their councils in taking active steps to consider any equal pay risk areas and pro-actively address any issues uncovered, including appropriate systems and checks to regularly assess and mitigate future risk. Click here to book.