The EAT has confirmed that the Equal Pay Act requires the tribunal to focus on each discrete contractual term relating to elements of remuneration and not on the overall remuneration paid to a woman compared to a man (Brownbill and others v St Helens and Knowsley Hospital NHS Trust).

The effect of the Equal Pay Act is to include an equality clause in a woman's contract under which any term which is less favourable to her than a similar term in a man's contract is to be treated as modified so as not to be less favourable. In this case the EAT examined the meaning of the word "term". The employer argued that it meant the overall remuneration package, whereas the claimants argued that each discrete term relating to remuneration had to be considered separately.

The claimants were health care assistants, receptionists and a senior health care assistant. Their comparators were male drivers, porter/drivers, parking attendants and male theatre porters. The claimants and their comparators each had different terms relating to the enhancement of pay for working on weekends and bank holidays and during "unsocial hours". They challenged their employer on the grounds that the various discrete terms relating to enhancements were less favourable than those of the men. The women's basic pay was less than that of their male comparators, although in practice the claimants received more pay overall than their comparators because they worked more antisocial hours as part of their normal arrangements.

The EAT confirmed that the overall position does not prevent the specific provisions from being considered and compared separately.

Impact on employers

  • This case confirms exiting principles under the Equal Pay Act that contractual provisions relating to pay are compared on a term-by-term basis, even if the outcome is that the claimants earn more than their comparators. A previous decision of the Court of Appeal (Degan v Redcar and Cleveland Borough Council) turned on its own facts and did not establish a general rule that a broader, overall approach should be taken to the comparison of contractual terms relating to pay. This contrasts with other discrimination law, such as the regulations relating to part-time and fixed-term workers, which provide for terms that are no less favourable overall.
  • The Equality Act 2010, which comes into force in October, will not change the main provisions of the Equal Pay Act. The EAT specifically referred to the fact that the relevant provision of the Equal Pay Act had remained unchanged in the face of its potential unfairness, despite the amendment of other parts of the Act over the years.