What Happens When the Pay of a Comparator in an Equal Pay Claim Changes?
Once a right to equal pay has been established, any right to higher pay is contractually binding on an employer and will remain even if the circumstances of the comparator change.
To succeed in an equal pay claim, it must be established (among other things) that a person of the opposite sex has more favourable contractual terms for doing like work, work rated as equivalent or work of equal value.
If a claim is successful, the courts will imply a 'sex equality clause' into the claimant's contract which has the effect of replacing their less favourable contractual terms with the more favourable terms of the comparator. In effect, the claimant's contract is varied.
Reading Borough Council v James and others
In this case, the female claimants sought arrears of pay dating back to 2002, comparing themselves with two male comparators in post from that time, and found to be doing work of equal value. With effect from 6 April 2006 one of the comparators, Mr Coleman, was promoted to a different role. With effect from 1 May 2011, the role of the other comparator, Mr Peever, was assimilated onto a Single Status Scheme at a lower rate of pay. The claimants' roles were not assimilated.
The Employment Tribunal
The Employment Tribunal held that the claimants were entitled to arrears of pay based on Mr Coleman's pay prior to his promotion and Mr Peever's unreduced salary. The Council appealed, arguing that:
- from the date of his promotion Mr Coleman stopped being an appropriate comparator and the claimants should find someone else to compare themselves to
- the claimants should only recover arrears of pay at the rate that Mr Peever was paid, meaning they should get less from May 2011 onwards
The Employment Appeal Tribunal
The EAT rejected the Council's appeal. It confirmed that once an individual's contract had been varied by the sex equality clause (in this case from 2002 onwards) it remains modified until 'something else' happens, such as a further agreement between the parties, a further collective agreement or a further statutory modification. Neither Mr Coleman's promotion nor Mr Peever's assimilation amounted to "something else" for these purposes.
Best Practice
Once a contract of employment has been modified via a successful equal pay claim it will remain binding on an employer until validly varied or terminated.