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Equal Pay: How to identify the right comparator
Published: Personnel Management, August 28
The comparator plays a crucial part in a wide range of employment-related cases. But who exactly is the comparator? It all depends on why the question is being asked, says Olga Aikin
(Olga Aikin is a partner in the Aikin Driver Partnership)
When someone puts in a claim for equal pay, they need to compare their existing pay with that of someone else – the comparator. The same is true in discrimination claims and those for equal treatment for part-time and fixed-term contract work. Unfortunately, a different definition of ‘comparator’ is used for each type of claim.
Equal pay
A woman (for example) bringing an equal pay claim has to show that her terms of employment are less favourable than those of a man (Equal Pay Act 1970 S1). The man has to be doing like work - work which has been rated as being of equal value in a job evaluation or found to be of equal value by a tribunal.
As if that is not enough, they also have to work at the same establishment, or if they do not then they must have common terms and conditions. In Leverton v Clwyd County Council [1989] ICR 33 HL, the court held that the two individuals had common terms because they had been set by the same collective agreement.
It is possible to make a comparison with someone who works on the same site but for a different employer, so long as the two employers are associated with each other – for example, because one controls the other or both are controlled by a third party. But again, if the two people work at different sites they must have common terms and conditions.
Under Article 141 of the EU Treaty it is even possible for a claimant to choose a comparator working for a third party employer who is not associated with her own employer. But their employment terms must come from a common source, such as the same collective agreement or regulations.
The comparator can be the claimant’s predecessor in her job, since the terms and conditions of both are known and can be compared. However, it is not possible to use the employee’s successor as a comparator. This is because the comparator must be real and not hypothetical. So while the successor’s terms and conditions may be known, the terms on which the claimant would have been employed at the time of the successor’s employment are a matter of conjecture. This principle was established in Walton Centre for Neurology v Bewley (2008 IRLR 588 EAT).
It is possible for the claimant to make a scattergun claim using several different comparators as in Hayward v Cammel Laird Shipbuilders Ltd (1988 ICR 464 HL)
Discrimination – sex, race, religion and belief, age and sexual orientation
In discrimination claims the comparator must be doing similar work, have similar qualifications and be the same in other respects as the claimant – apart, of course, from their sex, race, religion, belief or sexual orientation.
Where there is no exact comparator a hypothetical one can be used. In Shamoon v Chief Constable of the Ulster Constabulary (2003 IRLR 285 HL), Shamoon, the only female chief inspector, was, following complaints, no longer permitted to appraise constables. She claimed discrimination, using her male colleagues as comparators.
However, her colleagues could not be compared ‘like for like’ with her. Her comparator had to be a male chief inspector whose appraisals had been also criticised, but there was no-one who fitted the bill. The Lords decided that in such a situation a hypothetical comparator should be used.
Discrimination - disability
There has been a seismic shift in respect of comparators in disability claims. In Clark v TGD Ltd t/a Novocold (1999 IRLR 318) the Court of Appeal decided on a simplistic approach: the comparator was a person who was not disabled. Clark had been dismissed following a long period of sickness caused by disability. The court held that an employee who was not disabled would have been working, would not have been absent and would not have been dismissed, whereas Clark had suffered discrimination. However, in London Borough of Lewisham v Malcolm [2008] UKHL 43 this view was rejected. The Lords insisted that the comparator had to be placed in the same factual situation as the claimant. The comparator would be a person who was not disabled but who had been absent for a similar period of time. If that person would also have been dismissed, there would be no discrimination.
Discrimination – pregnancy and maternity
The Sex Discrimination Act 1975 (Amendment) Regulations 2008 were introduced following a High Court decision that the UK’s sex discrimination rules did not comply with EU requirements. The regulations provide that a pregnant woman or one exercising her right to maternity leave has been subjected to discrimination if she would have been treated more favourably had she not been pregnant or exercising her maternity rights. In other words, she becomes her own hypothetical comparator
Part-time work
In order to take advantage of the beneficial provisions in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, claimants must show that they are employed on the same type of contract as the comparator and do the same kind of work.
In Matthews & ors v Kent and Medway Towns Fire Authority [2006] IRLR 367 HL, the Lords took a very wide view of the type of contract that could be used. Both full and part-time fire fighters were engaged on permanent contracts, so they were on the same type of contract. The Lords were not concerned with differences between the actual contractual terms. Turning to the work itself, they insisted that there should be a consideration of similarities rather than differences. The part-time firemen fought fires. The main job of the full timers was also to fight fires, so their work was the same.
In addition, the comparator must work at the same establishment as the claimant. However, if no comparator can be found there, a comparison can be made with someone at a different establishment.
There cannot be a hypothetical comparator, nor one working for a different employer in claims brought under the part-time workers regulations.
Fixed term work
All the provisions for comparators in part-time claims also apply to those brought under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
A predecessor cannot be used as a comparator in these claims. The comparator must be a current employee.
Agency workers
Agency workers do not yet have the right to claim equal treatment with their permanent counterparts, but change is on the way. If the European temporary agency workers directive is changed so that these workers become entitled to the same terms and conditions as permanent employees, which seems likely, then there will be yet another type of comparator. Is it too much to hope that this time the definition will be clear and simple?