REWARD
Equal pay, dismissal, disability
NicolaMullineux , senior employment specialist for Peninsula , reviews the decisions in three cases
Walker v Co-operative Group The Court of Appeal has ruled that, when considering a ‘material factor’ defence within an equal pay claim, employers need to explain not justify pay disparity. Walker, the claimant in this case, was promoted in February 2014 when the respondent was in financial crisis, which was labelled as essential to its survival. She, along with her colleagues on the executive team, was offered increased salaries but her salary was lower. As time passed, the crisis was resolved, and a decision was made to downsize her role and pay her less. In February 2015, a job evaluation study (JES) was conducted which concluded that the claimant was paid substantially less than others whose work was of at least equal value to hers i.e. her ‘comparators’. Following a later dispute which took place in April 2017, she was dismissed from her role and later brought numerous claims to the employment tribunal (ET), including equal pay. When faced with an equal pay claim, it is open for employers to point towards a material factor not connected to gender which explains the difference in pay. The respondent sought to rely on a number of material factors.
The ET determined that the material factors which related to her pay as it was originally set in February 2014 were sufficient justification. These were as follows: the claimant’s comparators were vital to the immediate survival of the company as they formed part of a core team, whilst the claimant was not part of this team the claimant was newly promoted and unproven at executive level there was a more significant risk that the claimant’s comparators would leave the organisation one of the comparators was a ‘top’ corporate lawyer and therefore paid at a higher market rate. However, the ET then assessed the impact of the JES outcomes as outlined in February 2015. The tribunal concluded that, at some stage in the twelve months leading up to this study, the claimant’s comparators’ roles had been shown to have declined and had become more comparable to her own. Therefore, the ET was of the view that the material factors present in February 2014 were no longer material by the time of the study. The claimant was entitled to equal pay. The respondent, the Co-operative Group, appealed to the employment
appeal tribunal (EAT), arguing that the ET should not have decided that the non-discriminatory factors that applied in 2014 did not continue to apply when the JES was carried out in 2015. The EAT agreed. They outlined that a material factor defence continues to be in place until there is a reason for it not to be e.g. a further pay review is carried out. The claimant appealed to the Court of Appeal, but this was dismissed; the EAT’s finding stands. Argos Ltd v Kuldo The EAT has found that an employee was constructively dismissed when she was moved onto a different role instead of being subject to appropriate redundancy procedures. The claimant, Ms Kuldo, was employed as a costs manager at Argos when it was acquired by Sainsburys. As a result of this business acquisition, she was informed that her role was at risk of redundancy but that she, along with a colleague, was being considered for the role of central costs manager. At this time, she was provided a job description, alongside information about a proposed collective redundancy process. She was eventually told she would be given this role. Argos maintained a procedure where employees could be ‘mapped’ into similar roles if these were only 30% different at the most. Whilst Argos argued that the new role fell into this bracket, the claimant disagreed. In writing, she outlined that it offered less responsibility, less status and
...a material factor defence continues to be in place until there is a reason for it not to be e.g. a further pay review is carried out.
| Professional in Payroll, Pensions and Reward | December 2020 - January 2021 | Issue 66 36
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