The Equal Opportunities Commission have issued a new revised Code of Practice on equal pay which has received parliamentary approval and is due to come into force on 1 December 2003.
The code has been revised to take into account new legislation and recent case law and will be admissible in evidence in any proceedings under the Equal Pay Act 1970 or the Sex Discrimination Act 1975. Whilst the code is not binding the Employment Tribunal may take into account an employersí failure to act on its provisions.
The Equal Pay Act
The Equal Pay Act 1970 applies to all employers irrespective of their size and whether they are public or private sector. A woman can claim equal pay with a man or men in the same employment for the following:
The same work;
Work rated under the same job evaluation scheme or equivalent;
Work of equal value in terms of demands (for example effort, skill and decision making).
The revised code of practice on equal pay provides new guidance on equal pay for pregnant women, women on maternity leave, grievance procedures, equal pay questionnaires and equal pay reviews.
Maternity Leave
When a woman is on ordinary maternity leave, her contract remains in place and all her contractual terms and conditions must continue with the exception of normal pay. However, as the code points out, the position with regard to bonuses, occupational pension rights and provision of maternity benefits over and above those required by statutory schemes is unclear and specific legal advice should be taken in these areas.
In respect of additional maternity leave (26 weeks after the end of ordinary maternity leave) the womanís contract remains in place and the entitlement to paid leave under the Working Time Regulations continues to accrue. The code points out that in some cases it may be unlawful under the Employment Protection Act or the Sex Discrimination Act to treat a woman on maternity leave differently from other workers, eg, by failing to pay a bonus. This will depend on the specific facts of the case and legal advice should be taken.
Pay increases continue to accrue whilst a woman is on maternity leave and she is entitled to the benefit of any pay increases which she would have received if sheíd been at work.
Grievance Procedure
The code provides that before complaining to an Employment Tribunal a woman should try and resolve any complaint over her pay by agreement. This may be through the grievance procedure.
From October 2004 a woman will be obliged to use the grievance procedure for raising any such complaint under the new statutory disciplinary and grievance procedures bought in by the Employment Act 2002 and time limits for making complaints to the Employment Tribunal will to amended to allow this.
Equal Pay Questionnaire
The code provides that a woman is entitled to write to her employer asking for information to help her to establish whether she has received equal pay and, if not, what the reasons for the difference are. This is a standard form of questionnaire and a woman can send the questionnaire to her employer either before she files her complaint with the Tribunal or within 20 days from doing so.
The information provided by her employer should enable her to present her claim in the most effective way. If an employer fails, without a reasonable excuse, to respond within 8 weeks or responds with an evasive or equivocal reply, the Employment Tribunal may take this into account and draw an adverse inference (ie. that the employer had no genuine reason for the difference in pay).
Equal Pay Reviews
The employer is responsible for providing equal pay and for ensuring that pay systems are transparent. An employer is not required by law to carry out an equal pay review but the code recommends them as the most appropriate method of ensuring a pay system is free from sex bias. Whatever review process is used it should include:
a comparison of pay of men and women doing equal work, an employer should check for like work, work rated as equivalent and work of equal value
the employer should then identify equal pay gaps
the employer should then eliminate pay gaps that canít be satisfactorily explained on grounds other than sex
The code provides that a pay review process that does not include these features cannot claim to be an equal pay review. The features are the same whatever the size of the organisation and are essential. An equal pay review entails commitment to put right any sex based inequalities and a review must have the involvement and support of managers with the authority to delivery the necessary changes in order to be effective. It would be good practice for employers to also consider ethnicity, disability or age within their review process.
This article has been produced by Joe Thornhill, partner in the employment team, North-East law firm Ward Hadaway.
www.wardhadaway.com
The full code can be downloaded by accessing the Equal Opportunities Commission website at
New code of practice on equal pay
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