Employment Appeal Tribunal gives guidance on the test for ‘like work’ in Equal Pay cases

When employment tribunal cases are heard by a full tribunal (an employment judge sitting with two lay members) as is the case in discrimination, whistleblowing and equal pay claims, there is the possibility that a majority judgment can be reached in which the lay members ‘out-vote’ the employment tribunal judge. This happened in the recent case of Miss C L Hampson v CSC Computer Science Limited.

In this case the Claimant brought an equal pay claim against the Respondent alleging that she undertook ‘like work’ with several different comparators. After a lengthy hearing the tribunal concluded (by a majority that did not include the judge) that the Claimant did undertake like work and, further, that her claim should succeed.

This decision was challenged in the Employment Appeal Tribunal and the EAT have allowed the appeal and ordered that the case be remitted to a differently constituted tribunal for a re-hearing. The major issue which the EAT had with the original judgment was that it failed to make ‘clear findings of fact’. The EAT stressed that the role of the tribunal was to make findings of fact from the evidence presented before it and to then apply the law to those findings of fact. In this case, the EAT found that the judgment merely set out a summary of the evidence rather than making clear findings of fact.

The EAT gave some guidance as to the approach that tribunals should take in ‘like work’ cases such as this. They set out the following steps:

• Findings of fact should be made on the evidence about:
  • The work the claimant did;
  • The work done in any relevant period by her comparators;
  • What differences there were, if any;
  • The frequency of occurrence of the differences in practice; and
  • The extent of those differences.
• Armed with those findings of fact the tribunal could then assess whether the work was the same or broadly similar (Stage 1) and
• Whether differences established were of practical importance in relation to the terms of the work (Stage 2)

This is a helpful summary of the legal test involved where an employee claims that they are being paid less than a comparator who carries out ‘like work’.

For more information please contact a member of our Employment team.