Former Employment Judge and Trinity CEDR Accredited Mediator, Michael Malone has prepared the following analysis of the recent interesting equal pay and discrimination decision of Ms P Jiang v James Durrans & Sons Ltd (England and Wales : Equal Pay Act) [2023] UKET 2206656/2021 (8 March 2023).
All employment lawyers know that there are important differences between equal pay cases and other sex discrimination cases. For example, an actual comparator is required for an equal pay claim and the remedy for an underpayment is back pay and interest, with no additional award for injury to feelings.
There are however circumstances in which equal pay and other sex discrimination claims can be closely connected. For example, if a job offer is made to a person on terms which, if accepted, would give that person a valid equal pay claim, then the making of the offer is unlawful sex discrimination, whether or not the offer is accepted (Equality Act 2010, s39 (1)(b) and (6)). Such claims appear to be very rare, but the remedy for a successful claim could include compensation for injury to feelings.
A first instance decision in March 2023 of Jiang v James Durrans & Sons Ltd shows how the way in which an equal pay claim is handled can lead to a successful sex discrimination claim, even if the equal pay claim itself is not upheld.
Ms Jiang brought a number of claims, including an equal pay claim. She named two comparators in her equal pay claim, Mr Armitage and Mr Jentsch. She contended that she and they were employed on like work or alternatively that her work was of equal value to hers. The equal value claim and also a claim of (constructive) unfair dismissal were to be dealt with at a later date.
The question of the claimant’s pay was first raised on her behalf by one of her comparators, Mr Armitage, in his role as the claimant’s husband. At her request he spoke in May 2021 to the Managing Director, Mr C Durrans. The tribunal found (though Mr Durrans denied) that the response by Mr Durrans was that he was ‘comfortable with the level of their combined household income’. The tribunal also found that the claimant was very upset and angry about this response.
The claimant then raised the issue of her pay directly with Mr C Durrans in an email sent in June 2021. They were unable to agree on the arrangements for an informal meeting and she submitted a formal grievance. There was a grievance hearing conducted by Mr N Durrans, in July, and an appeal hearing, conducted by Mr C Durrans, in early September. The claim for more pay was rejected at both stages, but specific reasons were given for paying the claimant less than her comparators. There was no further reference to the combined income of the claimant and her husband.
The tribunal decided that the claimant and her comparators were not employed on like work. They all held senior and demanding posts, but the responsibilities of those posts and the skills required were very different. As mentioned, the question of equal value, together with the unfair dismissal claim, remained to be considered at a later date. All the claimant’s other claims were dismissed, with one exception.
The exception was a claim of sex discrimination based on the response to Mr Armitage when he raised the question of the claimant’s pay on her behalf. The tribunal concluded that the claimant ‘was subjected to a detriment because her complaint about her level of pay was not considered on its merits. It is clear from the reason given for not dealing with it that Mr Durrans’ view was that a married woman cannot challenge her level of earnings if her husband is a high earner. That is a view that is inherently discriminatory against women’.
It is important to note that the question whether the claimant had a good equal pay claim was irrelevant to her sex discrimination claim. There is no general rule that employers must enter into pay discussions whenever an employee wishes, but a refusal to do so must not be based on the sex of the employee (or indeed on the fact that she is married). Any such refusal is contrary to s 39 of the Equality Act 2010.
The tribunal awarded compensation of £4,000 for injury to feelings. The tribunal took into account the fact that this was a one off act and that within a short time ‘the respondent did consider the claimant’s complaints about her level of pay’. The implication is that the award could have been considerably greater if the discriminatory refusal to consider the matter had continued.
Michael Malone is a mediator at Trinity Chambers. He undertakes mediations in employment and civil litigation cases and also workplace mediation. He is CEDR accredited and a Fellow of the Chartered Institute of Arbitrators (CIArb). For further details, contact Steve Walker on 0191 232 1927, email stevew@trinitychambers.co.uk.