It’s commonly observed that equal pay legislation has been in place for over 40 years but a significant gender pay gap stubbornly persists. One of the likely reasons for this is that equal value claims are dauntingly complex, long-running and expensive. While claimants in most employment tribunal litigation can expect a result comfortably inside 12 months, equal pay litigation can go on (and therefore have to be continuously funded) for years. Some of the high-profile claims against Asda, for example, started in 2008 and there is no end in sight, even at employment tribunal level, after which subsequent escalating appeals seem inevitable.
The problems for aspiring equal pay claimants don’t end there. Historically it wasn’t unusual for dozens or even hundreds of individual pay claims against a single employer to be presented on a single claim form. The requirement (in rule 1(7) of the ET rules 2004) that all such claims had to “arise out of the same set of facts” was never seriously scrutinised. The ET rules 2013 essentially reproduce that requirement, albeit in slightly different language (“based on the same set of facts”) (rule 9). Where this requirement is not met, it is treated as an irregularity (rule 6 and rule 9).
So, what “facts” in a multiple equal pay claim have to be “the same” and what are the consequences if they aren’t? These issues have been addressed for the first time by the EAT in five related cases. In broad terms, the claimants in these cases argued that the purpose of the “same facts” rule was to identify cases which were sufficiently similar to be heard together. If a group of claimants in predominantly female jobs were seeking equal pay with comparators in predominantly male jobs in the same employment, that was enough. The EAT disagreed, ruling that claimants could only share the same claim form if they were doing the same work. Otherwise they risk their claims being struck out.
Unless this ruling is successfully appealed, unions or groups of individuals contemplating a multiple equal pay claim will probably err on the side of caution and issue separate claims for each job type in the multiple claim. This will obviously give rise to cost issues, since each separate claim form will incur a separate issue fee. In simple multiples, involving only a few job types, this should not be prohibitive because the highest issue fee payable (for 201 or more claimants on the same claim form) is £1,500. This begins to look modest in comparison with the huge cost of running a complex equal value claim for many years with the uncertain prospect of success and reward at the end.
There is a wrinkle, however. During the course of an equal value claim, long and detailed job descriptions (sometimes in excess of 30 to 40 pages) are prepared for the independent job evaluation expert to report on. In the ET rules these documents are called “statements of facts” which are relevant to the equal value question. It’s not uncommon that two jobs which share the same job title begin to look quite different when subjected to that level of scrutiny. Will it be open to respondents at that late stage in the proceedings to argue that those two jobs should never have been presented on the same claim form because the “facts” are not “the same”? It’s a tricky argument but my guess is that respondents in large multiples might well give it a go.