Lawyer Monthly - December 2024

What are some common misconceptions about pay discrimination law that you have encountered, and how can they be addressed? Some common misconceptions are relatively harmless— for example, that independent experts decide whether jobs are of equal value. The independent expert does have an important role in those equal pay claims where equal value is one of the issues, but the actual decision is one for the employment tribunal. I chaired two equal value hearings in which we had evidence from an expert for each party, as well as the independent expert, and in one of them, we came to very different conclusions from those recommended by the independent expert. Another common misconception is that the law is not concerned with any discrimination in pay apart from sex discrimination. That misconception is understandable because sex discrimination in pay (and other contract terms) had its own separate equal pay legislation (now embodied in the Equality Act 2010). No other protected characteristic had separate legislation on pay, but, for example, the Race Relations Act 1976 covered pay discrimination along with all the other acts of racial discrimination against employees. Pay discrimination cases under that Act were rare, but in 2017, the Supreme Court considered a case in which indirect racial or religious discrimination was alleged, and one in which indirect racial or age discrimination was alleged. A more serious misconception is in regard to gender pay gap information. Most organisations with at least 250 employees are required to publish information every year. It is commonly assumed that an employer with a high headline pay gap is not meeting its equal pay obligations; and conversely, that a company with a low gap is doing well. The former companies are commonly vilified as ‘offenders’ in newspaper headlines. In fact, there is absolutely no necessary correlation. There are many valid reasons 18 LAWYER MONTHLY DECEMBER 2024

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