It's the law: Equal pay: comparators

The third in a series on equal pay claims and how best to deal with them.

In order to bring an equal pay claim, a woman must point to a male comparator employed on like work that is rated as equivalent, or work of equal value (Third Sector, 26 March). The comparator must be in the "same employment" as the woman, although it need not be contemporaneous employment. A woman can compare her pay with that of a male predecessor or successor in the same job.

The woman must be able to show that a comparable male is employed by the same employer or an associated employer, and either that he is employed at the same establishment as the woman or that he is employed at a different establishment belonging to that employer (or an associated employer) where common terms and conditions of employment are laid down for the two establishments.

"Common terms and conditions" can be found by virtue of the existence of a collective agreement setting out nationally agreed terms and conditions. However, they can also include terms and conditions where significant differences exist.

The ability of a woman to compare herself with a man employed on common terms and conditions can affect charities where staff are employed by different entities within the same charities group. For instance, it might be possible for a charity shop worker employed by a charity's trading subsidiary to try to compare herself with a male administrative worker employed by another subsidiary.

Existing case law has held that a comparison of women employed as canteen workers and cleaners with men employed as surface mine workers was valid when making a "broad comparison" between their terms and conditions, and taking into account the presence of a collective agreement setting out nationally agreed terms and conditions. Likewise, for example, a woman employed as a nursery nurse could compare herself with men engaged in a variety of other occupations in the employment of the same local authority.

A woman may also be able to bring a claim where she can show that her pay and that of her proposed comparator can be attributed to a "single source", where there is one body responsible for the inequality that can restore the equal treatment. An example of a single source is where the individual and her comparator are employed by different employers but their terms and conditions are governed by a national collective agreement.

- Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors.

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