Navigating Equal Pay Challenges: Understanding the Role of Secondments and Contractual Obligations
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Legal Foundations of Equal Pay and Secondment Dynamics
Equal pay law mandates that men and women receive the same compensation for performing: (a) ‘like work’ involving comparable jobs and skills; (b) ‘work rated as equivalent’ where roles require similar levels of skill, responsibility, and effort, typically assessed through job evaluations; or (c) ‘work of equal value’ involving comparable skill, training, responsibility, or working conditions.
However, employers can counter equal pay claims by proving that any wage discrepancies arise from gender-neutral factors. A notable case reviewed by the Employment Appeal Tribunal (EAT) illustrates this defence in scenarios where payment differences between male and female employees stemmed from the secondment of staff from higher-paid operational roles to lower-paid administrative duties.
Barnard v. Hampshire and Isle of Wight Fire and Rescue Authority
In the case of Barnard v. Hampshire and Isle of Wight Fire and Rescue Authority [2024] EAT 12, the employee, B, worked in administrative roles under ‘Green Book’ conditions—a common arrangement in parts of the public sector named after the color of the book cover used in their collective agreements. B initiated an equal pay claim, comparing her compensation with that of male colleagues seconded from operational firefighting roles (‘Grey Book’ terms) to similar administrative positions. These terms not only offered higher pay but also required the men to maintain readiness to return to firefighting duties.
B contended that her work was similar to that of her male colleagues and sought equal pay in terms of hourly rates, weekly hours, and annual leave entitlements. Despite her arguments, her claim was unsuccessful. The tribunal acknowledged the similarity in their work but justified the pay difference due to the need for the former firefighters to remain operationally competent—a rationale deemed unrelated to gender.
How Employers May Evaluate Material Factor Defences in Equal Pay Litigation
Upon appeal, the EAT confirmed the original decision but provided crucial guidance on assessing the legitimacy of a material factor defense by an employer:
- If an employer asserts that a pay differential is due to a contractual obligation, but evidence indicates the obligation is not actively enforced or has been ignored, the tribunal might conclude that the requirement has been effectively suspended or abandoned.
- However, in the absence of definitive evidence showing a change in the employer’s approach to the contractual obligation, the tribunal is not required to presume non-compliance simply because the employee is not actively fulfilling their contractual duties.
This guidance underscores the importance for employers to actively enforce and monitor compliance with any contractual obligations that justify pay disparities. Neglecting this may result in the tribunal rejecting a material factor defense and supporting an equal pay claim.
This case sheds light on the complexities of equal pay disputes and the critical role of clear and enforceable contractual obligations in defending against such claims. Employers must ensure diligent enforcement of these justifications to avoid successful challenges under equal pay laws.
Read The Case:
Read the EAT’s decision in Barnard -v- Hampshire and Isle of Wight Fire and Rescue Authority [2024]
