Hosso v European Credit Management Ltd 2012 ICR 547

Ms Hosso was unable to recover £34,000 compensation when she was not granted as many shares as her male comparator under ECM’s discretionary share option scheme. As the scheme was discretionary and not regulated by her employment contract, her claim could not fall within the scope of the Equal Pay Act 1970.  As her sex discrimination claim was out of time, her claim failed in toto.

The starting point in an equal pay claim is whether the woman’s contract contained a term that was less favourable than an equivalent term in the male comparator’s contract or no equivalent term.  There was no contractual term relating to the allocation of share options and there was no difference between the terms of the share option scheme in relation to Ms Hosso and her male comparator.  They were standard terms.  Her claim was for a difference in the exercise of a discretion which fell to be dealt with under the sex discrimination legislation.

Key point:  In this type of claim it is sensible for an employee to plead both sex discrimination and equal pay in the alternative within the 3 months’ time limit.  Employers should take the point if they do not.