Posted: Sun Apr 13, 2008 12:43 pm Post subject: Equal Pay Act query
I have an employee (female) who has put in a grievance following redundancy for equal pay. Here is her history.
She was employed in 2005 to work an evening shift 5pm - 11pm and paid minimum wage plus a shift allowance of 15%.
In early 2006 she put in a flexible working request and asked to move to part time hours on the day shift which we accepted and she accepted that she would no longer receive any shift allowance.
In May 2006 the company decided that no new employees male or female would receive a shift allowance for working the evening shift, but if we had to impose on employees to work the eveing shift an allowance would still be payable. Any employees who started work were advised that an allowance was not payable and this was in their contract of employment. All employees already working on the evening shift and in receipt of the allowance would keep being paid it.
In late 2006 my employee submitted another flexible working application to move to the evening shift as her husband's hours had changed and we were unable to accommodate this request as she had already had one application granted in a year. We did look hard to see if we could do anything but we did not have enough work for another evening shift person and we could not take one person off to move another on.
In February 2007 we had a round of redundancies from the day shift and my employee was selected but at the same time we had a vacancy come available on the evening shift and as we knew she wanted to move we offered this to her as an alternative to redundancy and made it clear that she would not receive any shift allowance. Knowing this she accepted this post as an alternative to redundancy.
She worked under these conditions and did not question her non receipt of shift pay, Then in March 2008 we had to have another round of redundancies and just after the letters went out advising of possible redundancies she asked her manager why she was not getting shift pay and the reason was explained to her again.
Unfortunately she was selected for redundancy this time and following her termination she has now sent in a letter claiming breach of the equal pay act and I am not sure where we stand as we did not employ any male employees since the time the company changed its policy on shift pay because we did not have any applicants and we were not recruiting much but there are 2 current employees who are male who receive the shift pay because they have been in receipt since they were employed before policy changed.
Pls advise urgently your thoughts on this as I thought we were complying as their basic hourly rate of pay is the same - it is only the shift allowance that is different and post May 2006 this would be the case whether male or female employees were concerned.
Posted: Mon Apr 14, 2008 7:47 am Post subject: Equal Pay Act - shift allowances
Debbie, this is not an area that I have any expert knowledge on, but the basic provisions of the Act seem quite clear.
1. Every employment contract is deemed to include an "equality clause", even if, in practice, it doesn't.
2. One provision of the equality clause is that:
Quote:
2(a) Where the woman is employed on like work with a man in the same employment
- if (apart from the equality clause) any term of the woman’s contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and
- if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman’s contract shall be treated as including such a term
So, in principle, a man and woman working on the same shift and doing the same job should be paid the same.
3. However, there may be a "material factor" which justifies the difference. The Act says:
Quote:
3 An equality clause falling within subsection (2)(a)...shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor
- in the case of an equality clause falling within subsection (2)(a)...must be a material difference between the woman’s case and the man’s.
It sounds to me as if you can provide such a "material factor" and that it explains the difference in treatment between the man and woman.
The Equal Opportunities Commission website has a large section on Equal Pay matters and you may find the page "Is there a defense?" useful. _________________ Ian Congreave, PayPerShop owner
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