Promotion of comparator does not affect the right to equal pay


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The EAT has held in Reading Borough Council v James and others that the contractual right of the group of female employees to equal pay was not affected by the promotion of their male comparators (post-promotion he was no longer doing work of equal value).

The tribunal had found that the claimants were employed on work of equal value to that done by two male highways operatives. The claimants then sought arrears of pay going back to 2002. The council argued that they were not entitled to equal pay for the entirety of the period as one comparator had been promoted, and the other had been assimilated into a single status scheme at a lower rate of pay.

The tribunal rejected this argument and, on appeal, so did the EAT. The EAT held that once a comparator had been established it was not open to the council to contend for a "better" or "more appropriate" comparator. The conditions for the operation of the sex equality clause had been satisfied in 2002 and it took effect then and amended the claimants' contracts to equalise them with the chosen comparator. The claimants' right to higher pay crystallised in 2002 and continued until their contracts were either varied or terminated. Although the case was brought under the Equal Pay Act 1970 it applies equally to more recent claims brought under the Equality Act 2010.

Take note: It follows from the decision in James that once a right to equal pay has been established the sex equality clause implied into every employment contract takes effect. From then onwards the right to higher pay crystallises and, unless the claimants' contracts are varied or terminated, it does not matter what happens to their comparators' pay.

This article is taken from HR Law - July 2018.

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