In the recent case of Reading Borough Council v James and others, the EAT held that a group of female employees’ contractual right to equal pay was not affected by the promotion of their comparator. The argument that the right to higher pay is curtailed where the comparator is promoted but alternative male comparators remain employed was rejected.
The Council’s appeal related to the employment tribunal’s decision that the claimants were entitled to equal pay, with arrears dating back to 2002, having found that the claimants were employed on work of equal value to that done by two male highway operatives. The Council had challenged the period over which the claimants’ right to equal pay was effective, highlighting firstly that one of the male comparators had been promoted in April 2006, and secondly that the other male comparator’s role had been assimilated onto a single status scheme at a lower rate of pay. The Council had put forward the argument that neither male was a valid comparator for the whole period of arrears. However, this approach was rejected by the tribunal, who instead found that the claimants were entitled to arrears of pay based on the first comparator’s pay in April 2006 and the second comparator’s unreduced salary.
The EAT dismissed the Council’s appeal, emphasising that the fact that there were other comparators available did not and could not undermine the claimants’ entitlement to equal pay. Furthermore, it was held that, once a comparator had been chosen, it was not open to the Council to contend for a “better” or “more appropriate” comparator.
Upon satisfaction of the conditions for the operation of the sex equality clause (implied into every employment contract) in 2002, it took effect and amended the claimants’ contracts, equalising them with the chosen comparator. The EAT held that no temporal limitation or other provision in the Equal Pay Act 1970 then restricted the continued implication of the equalised term in any way. As a result, the claimants’ right to higher pay crystallised in 2002 and would continue until their contracts are validly varied or terminated. The Council’s argument that an operative variation occurred because different valid comparators continued their role, whilst the one chosen by the claimants did not, was rejected. Similarly, in respect of the second comparator, despite his contract having been varied as at the time he was placed on the single status scheme, the claimants did not agree to a variation of their pay and were not assimilated. Therefore, their crystallised rights continued.
For the purposes of best practice, employers ought to take timely steps to ensure pay structures are free from unlawful sex discrimination. However, in the event that an equal pay claim is brought against an employer, they should take into account the EAT’s findings in this case in relation to comparators and crystallisation of the right to equal pay.
