Comparing men and women

South Tyneside Borough Council v McAvoy and ors

Under the 1970 Equal Pay Act, claimants have to choose an actual (as opposed to a hypothetical) comparator doing like work, work rated as equivalent or of equal value. In South Tyneside Borough Council v McAvoy and ors, the Employment Appeal Tribunal (EAT) has said that a man can compare himself with a woman bringing an equal pay claim with a higher paid male comparator.

Basic facts

These claims arose in the context of equal pay “multiple” claims, mostly by women working in female-dominated jobs against a number of local authorities in the north east of England. They claimed entitlement to “bonus schemes” that the Council paid to employees in predominantly male jobs.

Although the bonuses were discontinued in 2005, the women claimed arrears of pay. The council argued that the bonus arrangements constituted a “material factor” under the Act, thereby justifying the differential. However, for the most part this defence did not succeed and the women were paid the arrears owing to them.

Some of the claimants in these multiples were men who then argued that, if the women were entitled to the payments, then they must be entitled to equivalent payments using the successful women as comparators.

Tribunal decision

And the tribunal agreed that the men should have an equality clause inserted into their contracts with their relevant female comparators. However, it then said that this could only be backdated to the date when “the relevant female comparator(s) presented her successful claim”. In other words, they were not entitled to any arrears of pay that had accrued prior to the date when the women lodged their claims.

The Council appealed against the tribunal decision about entitlement and the men cross-appealed against the ruling limiting their payment of arrears.

EAT decision

The EAT found in the men’s favour on both counts. It took as an example a woman (F1) and a man (M1) who are working alongside one another doing the same work. The man is being paid £9 per hour whereas the woman – following a previous successful claim comparing herself with a man doing a different job (M2) - is receiving £10 per hour.

It said that the difference between the two contracts of M1 and F1 was not due to a genuine material factor other than the difference of sex. If M1 could not compare the terms of his contract with F1 just because she had benefited from a tribunal award, he would clearly be a victim of (direct) sex discrimination.

As the EAT said “If one asks why M1 is getting £1 less per hour than F1, it would be both natural and correct to answer "because he is a man". It is true that it would also be possible to say, as the Councils prefer to put it, "because F1 succeeded in an equal pay claim"; but that begs the question why M1 cannot likewise bring such a claim, to which the only answer is that both he and the comparator, M2, are men”.

The EAT also decided that the men’s claims could be brought even before the women’s claim had been decided, although the success of his claim would ultimately be dependent on the outcome of hers.

Finally, the EAT decided that the male claimants' were entitled to claim arrears of pay for the full period for which their female comparators had been awarded arrears. This was because the arrears represented pay. The women’s entitlement to that pay accrued “pay-day by pay-day, over the period for which M2 was an available comparator” in respect of the work done by them over that period, even though their employer did not recognize that they were entitled to it at the time.

That being so, the EAT concluded that “it is hard to see any principled reason why that pay should be excluded from consideration in deciding whether M1 has received equal pay with F1”