Good News for Male Claimants
Good news from the Employment Appeal Tribunal (EAT) – a recent landmark case has upheld the rights of male workers to bring ‘piggyback’ equal pay claims.
So the stance taken by Action 4 Equality Scotland and Stefan Cross has been completely vindicated – and significantly the trade unions were not even involved in this hugely important EAT case.
In McAvoy v South Tyneside Borough Council the EAT has held that a man may validly pursue a 'piggyback' equal pay claim by comparing himself with a woman - who herself has succeeded in an equal pay claim with a higher paid male comparator.
The present claims arose in the context of multiple equal pay claims, brought against councils in the North East of England, mostly by women employed in predominantly female jobs – the position is just the same north of the border, thanks to the work of Action 4 Equality Scotland and Stefan Cross.
The women succeeded in claiming entitlement to 'productivity bonuses' paid to male comparators working elsewhere and they were accordingly awarded arrears of pay.
The EAT held that the men could claim equal pay AND sex discrimination based on being excluded from settlements - this means that the mere fact that there has been a settlement is enough to give the men a claim.
Men working alongside the female claimants brought contingent equal pay claims on the basis that, if and to the extent that the women's claims succeeded, they would be entitled to equivalent payments using the successful women as comparators.
An earlier employment tribunal upheld the men's claims, establishing their entitlement to the higher pay won by the female claimants, but only from the date on which the relevant female claimants presented their claims. The councils' appealed the tribunal's decision that the men were entitled to bring such claims at all, and the male (Stefan Cross) claimants appealed the decision to limit their entitlement to arrears of pay.
The EAT examined the case by reference to a simplified example: a woman (F1) and a man (M1) are working alongside one another on the same work, but the man is being paid £9 per hour, while the woman - by virtue of a previous successful claim by reference to the pay of a man doing a different job (M2) - is receiving £10.
The EAT held that these facts clearly triggered the operation of the equality clause. It rejected the Councils' argument that the pay disparity between M1 and F1 was due to a genuine material factor other than the difference of sex, namely that F1 was the beneficiary of a tribunal award and M1 was not.
The only reason M1 could not also have brought such a claim was that both he and the comparator, M2, are men. In other words, 'but for ' M1's sex, he would be entitled to the same pay as F1.
The EAT rejected the councils' appeal and the argument that the men's claims were premature, and went on to uphold the male claimants' appeal against limiting their arrears of pay. Referring back to its simplified example, the EAT noted that the arrears awarded to F1 represent pay, albeit paid late and only as a result of her bringing a tribunal claim.
The male claimants were therefore entitled to arrears for the full period that arrears were awarded to their comparators.
NB with thanks to the Employment Lawyers Association and IDS Employment Law Brief for some of the background information contained in this post
So the stance taken by Action 4 Equality Scotland and Stefan Cross has been completely vindicated – and significantly the trade unions were not even involved in this hugely important EAT case.
In McAvoy v South Tyneside Borough Council the EAT has held that a man may validly pursue a 'piggyback' equal pay claim by comparing himself with a woman - who herself has succeeded in an equal pay claim with a higher paid male comparator.
The present claims arose in the context of multiple equal pay claims, brought against councils in the North East of England, mostly by women employed in predominantly female jobs – the position is just the same north of the border, thanks to the work of Action 4 Equality Scotland and Stefan Cross.
The women succeeded in claiming entitlement to 'productivity bonuses' paid to male comparators working elsewhere and they were accordingly awarded arrears of pay.
The EAT held that the men could claim equal pay AND sex discrimination based on being excluded from settlements - this means that the mere fact that there has been a settlement is enough to give the men a claim.
Men working alongside the female claimants brought contingent equal pay claims on the basis that, if and to the extent that the women's claims succeeded, they would be entitled to equivalent payments using the successful women as comparators.
An earlier employment tribunal upheld the men's claims, establishing their entitlement to the higher pay won by the female claimants, but only from the date on which the relevant female claimants presented their claims. The councils' appealed the tribunal's decision that the men were entitled to bring such claims at all, and the male (Stefan Cross) claimants appealed the decision to limit their entitlement to arrears of pay.
The EAT examined the case by reference to a simplified example: a woman (F1) and a man (M1) are working alongside one another on the same work, but the man is being paid £9 per hour, while the woman - by virtue of a previous successful claim by reference to the pay of a man doing a different job (M2) - is receiving £10.
The EAT held that these facts clearly triggered the operation of the equality clause. It rejected the Councils' argument that the pay disparity between M1 and F1 was due to a genuine material factor other than the difference of sex, namely that F1 was the beneficiary of a tribunal award and M1 was not.
The only reason M1 could not also have brought such a claim was that both he and the comparator, M2, are men. In other words, 'but for ' M1's sex, he would be entitled to the same pay as F1.
The EAT rejected the councils' appeal and the argument that the men's claims were premature, and went on to uphold the male claimants' appeal against limiting their arrears of pay. Referring back to its simplified example, the EAT noted that the arrears awarded to F1 represent pay, albeit paid late and only as a result of her bringing a tribunal claim.
The male claimants were therefore entitled to arrears for the full period that arrears were awarded to their comparators.
NB with thanks to the Employment Lawyers Association and IDS Employment Law Brief for some of the background information contained in this post
