Gender Pay Gap / Equality Question

[simon field]

Hello

The scenario is: (female) employee of just under 3 years, asks employer for extra help within the department, and was refused. Then decided to leave.

During the notice period, a (male) replacement was found. The role was like for like. Exactly the same job & responsibilities.
Female employee was to train the new chap before she left. One of her responsibilities was to process monthly salaries, and in doing so became aware that her replacement’s starting salary was £4000 more PA than hers.

She approached her MD the day before she left, and told him of her concerns around the new employees’ capability issues. She also mentioned that she was slightly aggrieved that not only was he ‘less than qualified’ but was also on substantially more money.

All this was verbal, nothing in writing.

Has this employer broken employment law?

 

[STDFR33]

No.

 

[simon field]

Cool, cheers ?

 

[Newchodge]

Hello

The scenario is: (female) employee of just under 3 years, asks employer for extra help within the department, and was refused. Then decided to leave.

During the notice period, a (male) replacement was found. The role was like for like. Exactly the same job & responsibilities.
Female employee was to train the new chap before she left. One of her responsibilities was to process monthly salaries, and in doing so became aware that her replacement’s starting salary was £4000 more PA than hers.

She approached her MD the day before she left, and told him of her concerns around the new employees’ capability issues. She also mentioned that she was slightly aggrieved that not only was he ‘less than qualified’ but was also on substantially more money.

All this was verbal, nothing in writing.

Has this employer broken employment law?

Possibly.

 

[simon field]

Possibly.

Thanks Cyndy. So it’s a ‘No’ and a ‘possibly’?

 

[Newchodge]

Thanks Cyndy. So it’s a ‘No’ and a ‘possibly’?

Was the refusal of support reasonable or was there a protected characteristic that may have required an adjustment. If the reason for refusal was financial, the new salary may be seen as an issue.
What is the reason for the higher pay rate - could be sex discrimination, could be age discrimination, could be market rates.

 

[simon field]

Was the refusal of support reasonable or was there a protected characteristic that may have required an adjustment. If the reason for refusal was financial, the new salary may be seen as an issue.
What is the reason for the higher pay rate - could be sex discrimination, could be age discrimination, could be market rates.

It wasn’t a reasonable refusal. Her job description was ‘Financial Controller’ but they lumped in HR, contracts, H&S.

The new guy only does ‘Financial Controller’

No protected characteristics.

The reason for the higher salary was desperation! When questioned, the employer said ‘it’s just the going rate’

 

[Paul Kelly ICHYB]

Why did you pay the replacement more money to do less of a job?

 

[Newchodge]

It wasn’t a reasonable refusal. Her job description was ‘Financial Controller’ but they lumped in HR, contracts, H&S.

The new guy only does ‘Financial Controller’

No protected characteristics.

The reason for the higher salary was desperation! When questioned, the employer said ‘it’s just the going rate’

Very poor employment practice, very poor management decisions, but, sadly, management stupidity is not actionable.

 

[Newchodge]

No protected characteristics.

Everyone has protected characterietics - sex, age, marital status, religious belief (or lack of it) etc etc. It is jst that sometimes those characteristics are not the reason for detriment.

 

[simon field]

Thanks Cyndy ?

 

[IanSuth]

Everyone has protected characterietics - sex, age, marital status, religious belief (or lack of it) etc etc. It is jst that sometimes those characteristics are not the reason for detriment.

i saw a report on a case recently to do with a solicitor, she got a payout for sex discrimination as her replacement was paid more and the judge said "going rate" was not an excuse

Will look for it (think i9t was in Reading which is why i saw the report)

 

[Newchodge]

i saw a report on a case recently to do with a solicitor, she got a payout for sex discrimination as her replacement was paid more and the judge said "going rate" was not an excuse

Will look for it (think i9t was in Reading which is why i saw the report)

Thanks Ian, I'd be interested in seeing that.

EDIT: The best advice I have seen on this is:

Where there are differences in pay or other terms, to successfully defend a claim an employer must identify the material factor(s) relied upon and be able to prove the following:

• It is the actual reason(s) for the difference in pay rather than a sham or pretence
• It is causative of the difference in pay between the complainant and their comparator
• It is material, ie; relevant and significant, and
• It doesn’t involve either direct or indirect sex discrimination.

This essentially means that even where an employee is able to identify a comparator at work who is better paid than them, or who works under more favourable contractual terms, these differences might be permitted, provided the employer can satisfy the four conditions above.

Any personal differences between the employees concerned, such as expertise and experience, may be material factors. In this context, an employer could argue that it was necessary to pay someone else more because of a staff shortage, provided they can prove difficulties in either recruiting or retaining staff to do the job being done by the higher-paid person.

 

[IanSuth]

Found it - was an IP Lawyer at British Gas, basically she worked part-time after having triplets, was refused a payrise and pestered over daring to not work on her days off, was replaced using an iffy redundancy process with a man paid far more despite her suggestion they promote her and get a cheap minion to do dogsbody work

Mrs G Long v British Gas Trading Ltd: 3327522/2019

Employment Tribunal decision.

www.gov.uk

45. We have come to the following conclusions:
46. The claimant’s complaint about equal pay is well founded and succeeds because the respondent has not been able to show that the difference in pay between the claimant and MP was because of a material factor which does not involve treating the claimant less favourably of her sex than MP.
47. The respondent concedes that the claimant carried out like work in comparison to MP. The respondent also concedes that MP was paid more than the claimant. The respondent maintained that the higher salary afforded to MP was not related to the claimant’s sex but to market forces.
48. The respondent relied on the evidence of Sarah Hartnell and Vicky Wells whose evidence was that the indication from HR was that MP would require a salary of £80k in order to secure him as an employee. In an email exchange between Vicky Wells and Sarah Hartnell the pay differential is recognized, reference is made to the purported reason for the higher salary and it is said that there is a “clear intention to bridge that gap at the earliest opportunity”: the respondent accepted that this did not occur in the 9 months that Case Number: 3327522/2019 (J) Page 12 of 20 claimant remained employed by the respondent.
49. The claimant points out that the defence of market forces is not pleaded in any detail. There is no evidence of a shortage of candidates for the role, there is no evidence that this was the reason for offering MP a salary of £80,000. The respondent’s witnesses have not offered any detailed explanation or direct evidence in respect of market forces. They rely on hearsay. The extent of the hearsay evidence from Sarah Hartnell’s was to the effect that she thought it was necessary to pay MP more because ‘Ian’ from HR said so. There is no evidence from Ian or another person from HR to support this. There is no evidence that a lower salary matching the claimant’s salary would not have secured the services of MP. There is no evidence of negotiation with MP

 

[IanSuth]

Thanks Ian, I'd be interested in seeing that.

EDIT: The best advice I have seen on this is:

Where there are differences in pay or other terms, to successfully defend a claim an employer must identify the material factor(s) relied upon and be able to prove the following:

• It is the actual reason(s) for the difference in pay rather than a sham or pretence
• It is causative of the difference in pay between the complainant and their comparator
• It is material, ie; relevant and significant, and
• It doesn’t involve either direct or indirect sex discrimination.

This essentially means that even where an employee is able to identify a comparator at work who is better paid than them, or who works under more favourable contractual terms, these differences might be permitted, provided the employer can satisfy the four conditions above.

Any personal differences between the employees concerned, such as expertise and experience, may be material factors. In this context, an employer could argue that it was necessary to pay someone else more because of a staff shortage, provided they can prove difficulties in either recruiting or retaining staff to do the job being done by the higher-paid person.

more over not being able to how evidence of a true market survey just relying on heresay that they needed to pay that much for the bloke

 

[IanSuth]

newspaper story on it that i think i saw first

Mum lost job after 'becoming less focused' when she gave birth to triplets

Lawyer Gemma Long has won a sex discrimination case against British Gas after her ‘personal circumstances as a mother of young children were unconsciously held against her’.

metro.co.uk

 

[Newchodge]

Found it - was an IP Lawyer at British Gas, basically she worked part-time after having triplets, was refused a payrise and pestered over daring to not work on her days off, was replaced using an iffy redundancy process with a man paid far more despite her suggestion they promote her and get a cheap minion to do dogsbody work

Mrs G Long v British Gas Trading Ltd: 3327522/2019

Employment Tribunal decision.

www.gov.uk

45. We have come to the following conclusions:
46. The claimant’s complaint about equal pay is well founded and succeeds because the respondent has not been able to show that the difference in pay between the claimant and MP was because of a material factor which does not involve treating the claimant less favourably of her sex than MP.
47. The respondent concedes that the claimant carried out like work in comparison to MP. The respondent also concedes that MP was paid more than the claimant. The respondent maintained that the higher salary afforded to MP was not related to the claimant’s sex but to market forces.
48. The respondent relied on the evidence of Sarah Hartnell and Vicky Wells whose evidence was that the indication from HR was that MP would require a salary of £80k in order to secure him as an employee. In an email exchange between Vicky Wells and Sarah Hartnell the pay differential is recognized, reference is made to the purported reason for the higher salary and it is said that there is a “clear intention to bridge that gap at the earliest opportunity”: the respondent accepted that this did not occur in the 9 months that Case Number: 3327522/2019 (J) Page 12 of 20 claimant remained employed by the respondent.
49. The claimant points out that the defence of market forces is not pleaded in any detail. There is no evidence of a shortage of candidates for the role, there is no evidence that this was the reason for offering MP a salary of £80,000. The respondent’s witnesses have not offered any detailed explanation or direct evidence in respect of market forces. They rely on hearsay. The extent of the hearsay evidence from Sarah Hartnell’s was to the effect that she thought it was necessary to pay MP more because ‘Ian’ from HR said so. There is no evidence from Ian or another person from HR to support this. There is no evidence that a lower salary matching the claimant’s salary would not have secured the services of MP. There is no evidence of negotiation with MP

Thanks Ian - so the reason was that there was no proper evidence that the higher rate had to be paid to recruit someone. If evidence exists - job adverts for similar roles, failed recruitment attempts and so on, it would be a valid defence.

 

[MBE2017]

A company could also rightly argue with huge inflation they now need to pay higher salaries to attract the right talent.

 

[IanSuth]

A company could also rightly argue with huge inflation they now need to pay higher salaries to attract the right talent.

Then the company better have lots of supporting evidence

They can search all the online advertising sights and record similar roles (as in same responsibilities and skills) and the advertised salaries. Maybe ring some agencies and get an idea of what the salary would need to be to attract someone - those are both free ways to get the evidence (other than in time)

If you read that case above the important thing is that Britch Gas lost as they just went off someone saying they needed to pay that much to get someone and not off any actual evidence

The claimant points out that the defence of market forces is not pleaded in any detail. There is no evidence of a shortage of candidates for the role, there is no evidence that this was the reason for offering MP a salary of £80,000. The respondent’s witnesses have not offered any detailed explanation or direct evidence in respect of market forces. They rely on hearsay.

 

[simon field]

The lady in question is my partner. On her leaving day, she asked why the new guy was on £4K more per annum than her, even on his 3 month ‘probation’ period.

She was told ‘that’s the going rate’

She asked ‘why wasn’t I paid the going rate?’

Stony silence!

 

[Newchodge]

The lady in question is my partner. On her leaving day, she asked why the new guy was on £4K more per annum than her, even on his 3 month ‘probation’ period.

She was told ‘that’s the going rate’

She asked ‘why wasn’t I paid the going rate?’

Stony silence!

Talk to ACAS Early Conciliation and start a claim. They have to prove it is the going rate.

 

[DontAsk]

Talk to ACAS Early Conciliation and start a claim. They have to prove it is the going rate.

Claim on what grounds? She left of her own volition. If she couldn't negotiate better pay whilst employed...

 

[Newchodge]

Claim on what grounds? She left of her own volition. If she couldn't negotiate better pay whilst employed...

Equal Pay Act

 

[DontAsk]

Equal Pay Act

I don't see how that applies when taking on a replacement.

She was on one salary, the replacement got a better deal. Unless she was doing the same job as someone already employed and being paid less for being a female.

 

[IanSuth]

I don't see how that applies when taking on a replacement.

She was on one salary, the replacement got a better deal. Unless she was doing the same job as someone already employed and being paid less for being a female.

She may have a claim that she was paid a lower rate due to being a female

It will be up to her ex employer to show that was not the case, not her to prove it was.

Of course if she has never asked for a payrise and they have no set pay review etc then it is easier for them to say - we just kept paying her X or X with a cost of living rise. But if they have given others payrises and not her, then she has resigned and they have replaced with a man on substantially more then she may have a claim