Equal Pay Briefing Equal Pay For Work Of Equal Value This is one of a series of leaflets that aims to help employers and trade union representatives deal with the more common causes of unequal pay in the workplace. The Equality Commission for Northern Ireland recommends all organisations carry out equal pay reviews. These leaflets are intended to help identify potential vulnerability to equal pay claims. This briefing looks at equal pay for work of equal value. Whilst every effort has been made to ensure that the advice given in this note is accurate, only the tribunals or courts can give authoritative interpretations of the law. What do we mean by equal value? Under the Equal Pay (NI) Act 1970 employees may claim equal pay with colleagues of the opposite sex where they are in the same employment and are doing equal work. Equal work can be: The same, or broadly similar (known as like work). Different, but which is rated under the same job evaluation scheme as equivalent to hers (known as work rated as equivalent). Different, but of equal value in terms of demands such as effort, skill and decisionmaking (known as work of equal value). The key point about equal value is that jobs, which at first sight may be very different, can turn out to be of equal value when analysed in terms of the demands made on the employee. The examples below show the breadth of comparisons that have been made in past cases. The golden rule is not to assume that jobs that are of different types (e.g. manual and administrative) cannot be of equal value.
Comparing jobs on the basis of equal value means jobs that are entirely different in their nature can be used as the basis for equal pay claims. Job comparisons can be made both within a particular pay/grading structure and between different structures or departments. Equal value is likely to be relevant where men and women are in the same employment but do different types of work. Some examples The question of whether two jobs are of equal value involves a weighing and balancing between the features of different jobs. Examples of claims between very different jobs, which have been successful at tribunal or settled in favour of the applicant(s) include: Primary school classroom assistant - library service driver messenger. School nursery nurse - local government architectural technician. Wholesale news distribution clerical assistant warehouse operative. Cook shipboard painter. Head of speech and language therapy service head of hospital pharmacy service. Nursing home sewing room assistant plumber. Motor industry sewing machinist upholsterer. Canteen workers and cleaners clerical workers. How do you find out if there is a problem? The comparison to be made in an equal value claim is similar to a mini-job evaluation exercise. The reference to 'effort, skill and decision' in the Equal Pay Act is intended as an example of the sort of criteria, commonly called 'factors', found in conventional job evaluation schemes. The most reliable and objective approach you can take to assessing whether your employees are doing work of equal value is to use an analytical (i.e. factor based) job evaluation scheme, covering all your employees, that is designed and implemented to take account of equal value considerations and of your specific job population. If you do not operate such a scheme you should seriously consider introducing one. 2
If you judge that it is impractical for you to introduce a job evaluation scheme covering all employees, then you will need to estimate equal value between jobs not covered by the same job evaluation scheme. This could vary from a small number of, for example, senior managers not covered by an existing scheme, to all employees, where you have no job evaluation at all. What lies behind the differences? The concept of equal value is intended to ensure that when employers set rates of pay they take account of all the significant demands of jobs done by both female and male employees. However you choose to assess job demands you will need to ensure that you measure fairly all the significant features of jobs typically undertaken by women, (for example, interpersonal skills, manual dexterity, responsibilities for customers, clients or members of the public) as well as those of jobs done by men (for example, physical effort). What else do you need to be aware of? If a job evaluation scheme has been completed but not implemented, for whatever reason, then employees whose jobs have been rated as of equivalent value to employees of the opposite sex, employed by you, or by an associated employer, are entitled to equal pay. Case law suggests that small differences will not necessarily prevent the jobs from being equal. In some instances where the scores of the applicant and the comparator s jobs were not exactly the same, tribunals have ruled that the scores were so close as to make no material difference. In other cases, close scores have marked a significant value in the jobs being carried out. Work is not of equal value where there is 'an overall measurable and significant difference' between the demands of the respective jobs. Equal value can also mean greater value. The right to equal pay for work of equal value not only applies to situations where the work is of exactly the same or very close value, but also applies to situations where the woman is being paid less for work of greater value. In such a situation the employer would have to give the woman parity with her male comparator. They would not have to pay her more than him. 3
Equal Pay Briefing Equal Pay For Work Of Equal Value Equal value does not mean that a woman is entitled to a proportion of her comparator's pay equivalent to the proportionate value of her job compared to his. So, for example, the employer would not have to pay her 70% of her comparator's pay on the grounds that her job is shown to be 70% of the value of his job. Action what you can do to put things right The Equality Commission s Equal Pay Review Kit Guidance Note 5: Assessing Equal Value suggests a number of possible methods for estimating equal value. It should be noted, however, that a rigorous job-evaluation-based approach is the most effective way to assessing equal value. To help identify sample jobs for any of the methods suggested: You may first find it helpful to set out your pay structures or pay rates on a chart. Choose jobs that are predominantly performed by one sex or the other, rather than mixed gender jobs. Identify likely vulnerabilities jobs performed mainly by women (or men) which you suspect may be under (or over) valued, compared to those performed mainly by employees of the opposite sex. Possible methods for estimating equal value If you have two or more job evaluation schemes covering all, or nearly all, your employees, you could estimate equal value by using the more generic job evaluation scheme to evaluate a sample of jobs covered by other scheme(s). If you have a number of separate grading (and pay) structures, at least one of which is based on job evaluation, you could estimate equal value by using the job evaluation scheme to evaluate a number of jobs outside its normal remit. If you have no job evaluation, you could estimate equal value by using your grades based on job profiles or a classification system. If you have no formal grading structure, or more than one formal structure, you could estimate equal value by using levels in a competence framework (either NVQ or an in-house system). 4
If you have no job evaluation, but you do have clear job families or other occupational group hierarchies, you could estimate equal value by matching those in equivalent positions in different job families or occupational hierarchies. If you do not fall into any of the above categories, you could estimate equal value by identifying a number of male and female employees' jobs within your organisation for equal value spot checks: the jobs where you suspect possible equal value vulnerabilities; those performed by large numbers of men and women; those performed by low paid workers. Then apply an equal value spot check to estimate whether the jobs are equal in value. The equal value spot check should involve a systematic assessment of the demands of the jobs under headings such as effort, skill, decision, and responsibility. Assessments of job demands carried out by only one or two people (e.g. line manager, personnel officer) can result in biased outcomes. You can reduce this risk by involving people with broad knowledge of jobs across the organization and ensuring that they receive training and guidance on equal value considerations. Transparency is a key feature of tackling equal pay problems. A transparent pay system is one where employees understand not only their rate of pay but also the components of their individual pay packets, including the way in which the demands of their jobs have been assessed. A transparent pay system avoids uncertainty and perceptions of unfairness and reduces the possibility of individual claims. If a pay system, or any part of it, is characterised by a total lack of transparency, the burden of proof is on the employer to show that the pay practice is not discriminatory. In respect of equal value, 'transparent' means that information about how job demands have been assessed and how this assessment results in the rate of pay for the job. 5
Equal Pay Briefing Equal Pay For Work Of Equal Value Isn't it time your organisation reviewed its pay system? Would you like to know how others are going about it? Why not join the NI Equal Pay Forum established by the Equality Commission and Opportunity Now to help organisations tackle the issue of equal pay? For further information contact Melanie Doherty on 028 90 460606 or email melanie.doherty@bitcni.org.uk Further Information: The Equality Commission has published a Code of Practice on Equal Pay and an Equal Pay Review Kit Step by Step Guidance. Copies of these documents and additional leaflets in this series are available from the Commissions website at www.equalityni.org. For further information or advice on Equal Pay issues or if you would like to find out more about the Equality Commission and its work, contact us at: Equality Commission for Northern Ireland Equality House 7 9 Shaftsbury Square BELFAST BT2 7DP Tel: 028 90 500 600 Fax: 028 90 238 039 Textphone: 028 90 500 589 Email: information@equalityni.org You can also use Typetalk to contact us. Equality Commission FOR NORTHERN IRELAND 6