The revised Code of Practice on Equal Pay came into force on 1 December 2003.
The code, which explains employers' obligations on equal pay, gives practical guidance on how to ensure pay is determined without sex discrimination and has been updated to take account of new law and recent equal pay case decisions.
New material contained in the revised code includes information on equal pay for pregnant women and women on maternity leave, grievance procedures, the equal pay questionnaire and equal pay reviews.
Like other codes of practice the Equal Pay Code does not have the force of law. However it is admissible in evidence in any proceedings under the Sex Discrimination Act 1975 or the Equal Pay Act 1970 before the Employment Tribunal. This means that, whilst the code is not legally binding, an Employment Tribunal may take into account an employer's failure to act on its provisions.
The new version will, like its predecessor, doubtless be of help to employers, employees and Tribunals, especially in assessing what circumstances may amount to indirect sex discrimination.
In a recent case, the Employment Appeal Tribunal (EAT) has ruled that a pay system under which employees with longer service and more experience get higher pay than those with shorter service and less experience does not infringe the Equal Pay Act 1970, even when most of the latter are female and most of the former are male.
The case was brought by a female health and safety inspector. She and her four male comparators were all employed by the Health & Safety Executive (HSE) as "Band 2 Principal Inspectors" but she was paid less than they were.
The employment tribunal found that the HSE had not established justification and accordingly held that Mrs Cadman was entitled to the declaration she had requested.
The HSE appealed to the EAT. There was no dispute but that the reason for the differential between Mrs Cadman's salary and those of her comparators was (almost entirely) the differences between their lengths of service. There was also no dispute but that Mrs Cadman was employed on work rated as equivalent to that of her four chosen comparators within the meaning of Equal Pay Act. The issue was whether the longer service of the male comparators amounted to a genuine material difference which was not a difference of sex for purposes of the Act.
The HSE won their appeal.
New anti-discrimination legislation may well see an increase in the number of cases reaching the employment tribunal. The best way to avoid and to defend successfully such cases is to have effective anti-discrimination policies in place and to make sure that all staff adhere to them.