Gender pay audits merely identify equal pay problems, not solve them

To see the celebrations of the claimants in the case of Birmingham City Council v Abdullah and Ors [2012] UKSC 47 following last week’s Supreme Court decision, you would think that they had just won an equal pay case – but they haven’t. They have simply won the right to bring their claims in the High Court rather than the employment tribunal where they would be time-barred.

Equal pay works differently from discrimination. It isn’t based on a statutory tort, but on the statutory implication of an ‘equality clause’ into a contract of employment. Since the claim is ostensibly based on a breach of contract, it seems natural that the Equal Pay Act – and now the Equality Act – allows a claim to be brought either in the employment tribunal or the normal civil courts.
There is a provision, however, allowing a court to strike out a claim if it can ‘more conveniently’ be dealt with by the employment tribunal (section 2(3) of the Equal Pay Act 1970, now replaced by section 122 of the Equality Act 2010). Since employment tribunals have specialist knowledge and experience of such claims, it has previously been assumed that it would always be more convenient to hear an equal pay claim in the employment tribunal and the jurisdiction of the civil courts has tended to be seen as a historical quirk rather than a realistic option.

Speculative exercise

In the Birmingham case, however, the claimants took advantage of the fact that while the time limit for bringing an equal pay claim in the employment tribunal is a strict six months from the end of the employment, a claim for breach of the equality clause can be brought at any time within the normal limitation period of six years. The issue for the Supreme Court was whether a claim can be “more conveniently” dealt with by an employment tribunal even though the tribunal would be required to dismiss the claim as being out of time.

By a majority, the Supreme Court held that dealing with a case conveniently means hearing it on its merits, not simply rejecting it.
Will this case open the floodgates for thousands of stale claims to be brought in the civil courts? Perhaps; but these claims are certain to be largely confined to the public sector. The fact is that equal pay claims in the private sector remain rare. That is not because private sector employers are less discriminatory, but because Public sector employers have made it much easier for large-scale equal pay claims to be brought

The main challenge facing equal pay claimants is proving that they are employed on equal work with a comparator. Unless the two jobs are identical that involves a detailed analysis and evaluation of each role to determine whether they are of equal value or can be rated as equivalent. This is a speculative exercise. Judging the respective value of two different roles always comes down to value judgements about what a particular aspect of somebody’s job is worth – however much number crunching analysis seeks to disguise that fact.