Lawyer Monthly - August 2021 Edition

compare the demands of the two jobs under a range of factors, such as the qualifications and experience required to do the job, the various responsibilities placed on the job holder, the physical and communication skills required, the degree of independence granted to the job holder, the working conditions and the demands in terms of physical, mental or emotional effort. The tribunal normally has the benefit of a report by an independent expert (IE). It is a common fallacy that the IE decides the question of equal value. In fact, the decision rests with the tribunal. I chaired two hearings in which we had a ‘battle of experts’, the IE and one for each party, and in one of those cases our conclusion was the opposite of that recommended by the IE. Many employers, particularly large organisations, have a JES in place. A JES, if it is analytical, can be either a gateway or a brick wall for claimants. As already mentioned, it answers the job comparison question in the claimant’s favour if the claimant’s job has been given at least an equivalent rating. On the other hand, if the comparator’s job has been given a higher rating, then the claimant cannot pursue an equal value claim - unless the JES can be successfully challenged. In the NHS litigation, a tribunal which I chaired rejected a challenge to a JES which covered nearly a million jobs. Several thousand claimants who relied on comparators in higher grades then withdrew their claims. On the other hand, there were successful challenges to a JES in some of the large local authority cases. Key questions for large organisations are whether to introduce a JES if they don’t have one and whether an existing JES will stand up to scrutiny. There have been no fundamental statutory changes to equal pay since 1984, not even under the Equality Act). However, in 1993 a decision of the European Court of Justice (ECJ) was of huge importance to many large organisations and their employees. In the Enderby case, which involved claims by speech therapists, the ECJ decided that paying more for a job done predominantly by men than for a job of equal value done almost exclusively by women can be unlawful indirect discrimination, unless objectively justified. The fact that there were separate negotiations for the two jobs, conducted in absolute good faith, was not sufficient justification. Subsequent cases established that the statistical gender differences between the two workforces need not be as extreme as those in the Enderby case. The Enderby principle underpinned the tens of thousands of equal pay claims against local authorities in the first decade of this century, the much smaller number of NHS claims and now the increasing number of claims by staff working in supermarkets, whose comparators are employees working in the employer’s distribution centres. The principle is relevant mainly to large organisations, because they are the employers most likely to have aggregations of A JES, if it is analytical, can be either a gateway or a brick wall for claimants. 56 WWW.LAWYER-MONTHLY.COM | AUG 2021 EXPERT INSIGHT