Equal pay – promotion of comparator

13 July 2018

Does a person's contractual right to equal pay stop if their comparator gets promoted?

No, the Employment Appeal Tribunal has said in Reading Borough Council v James.

In an equal pay claim, a woman must show that she is doing equal work to a male colleague (the comparator). If she does this, a 'sex equality clause' is implied into her contract of employment. This changes her contract to make any less favourable terms equal to those of her comparator. In this case, the claimants compared themselves to two highway operatives, dating back to 2002. One of the comparators was promoted in 2006. From 2011, the other one had his pay decreased so it was less than the claimants'. The Council said that from that point onwards, the claimants could no longer compare their pay to those comparators.

The EAT did not agree. Once the claimants had shown they were doing work of equal value to their comparator, the equality clause crystallised. Their contractual terms were changed to meet the comparator's higher pay. The terms could only be changed again if something else happened, for example an agreed variation. Compensation for equal pay doesn’t stop when a comparator leaves employment, and promotion is no different. The claimants' pay rate had been permanently changed. It was irrelevant that another highways operative remained employed on lower pay.

Employers should be aware that successful equal pay claims permanently change the employee's contractual pay terms, regardless of what happens to the comparator after that. Employers cannot choose a more favourable, lower paid comparator instead.

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