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Discrimination arising from disability: five examples from case law

“Discrimination arising from disability” is a relatively new concept introduced by the Equality Act 2010 but it is fast becoming a regular feature in claims at employment tribunal. Eleanor Gelder rounds up five recent case law examples of discrimination arising from disability.

1. Dismissing an employee for disability-related absences

Discrimination arising from disability.

Discrimination arising from disability: FAQs

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Disability discrimination: Employment law manual

Employers need to tread carefully when deciding to dismiss a disabled employee whose disability-related absences have triggered the organisation’s attendance policy.

In Griffiths v Secretary of State for Work and Pensions , the Court of Appeal held that dismissing an employee for disability-related absences that trigger the application of an attendance policy could constitute discrimination arising from disability.

2. Reasonable adjustments during redundancy process

Employers that fail to make reasonable adjustments in a redundancy process could risk a claim for discrimination arising from disability.

In Waddingham v NHS Business Services Authority , the employee, who was having cancer treatment, was required to undergo a competitive interview process during a redeployment exercise.

The employment tribunal held that the employer’s failure to make reasonable adjustments for Mr Waddingham amounted to discrimination arising from disability.

The tribunal found that a reasonable adjustment would have been to assess Mr Waddingham for the role without the need for a competitive interview.

Similarly, in London Borough of Southwark v Charles , the employer knew that the employee suffered from a disability that caused an inability to attend administrative meetings, including redeployment interviews.

The EAT held that the employer’s requirement for the employee to attend redeployment interviews constituted discrimination arising from disability.

3. Failing to consider suitable alternative employment

Section 15 of the Equality Act 2010 makes it unlawful for an employer to treat an employee unfavourably because of something “arising in consequence of” his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability.

An employer may successfully defend a claim if it can justify the unfavourable treatment on the basis that it is a proportionate means of achieving a legitimate aim.

In a redeployment exercise, employers must think carefully about how a disabled employee’s skills can be retained and what training may be required to successfully redeploy them.

In Horler v Chief Constable of South Wales Police , the employment tribunal found that the police had not met its duty to make reasonable adjustments because it had failed to consider alternative posts for a police officer who was unable to carry out frontline duties because of a disability.

The police had failed to justify the unfavourable treatment because the means adopted to achieve the legitimate aim – of providing effective policing – were not proportionate. Consequently, this amounted to discrimination arising from disability.

4. Giving negative verbal references or withdrawing job offers

Giving negative verbal references because of a former employee’s disability-related absence may amount to discrimination arising from disability. So too could the subsequent withdrawal of a job offer.

In Pnaiser v NHS England and another , the employee’s disability meant that she had a number of lengthy absences and regularly needed to work at home.

The EAT held that her former employer’s negative verbal reference and prospective employer’s subsequent withdrawal of a job offer both amounted to discrimination arising from disability.

5. Making reasonable adjustments to bonus schemes

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Refusing to pay a bonus to an employee who has received a formal warning for disability-related sickness absence may lead to a successful claim for discrimination arising from disability.

In Land Registry v Houghton and others , the EAT held that the employer’s failure to pay a bonus to employees was because the employees had received a disability-related sickness absence warning and was, therefore, discrimination arising from disability.

Eleanor Gelder

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• Discrimination under the Equality Act 2010

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The Supreme Court has recently confirmed which party has the burden of proving discrimination under the Equality Act 2010, in the case of Efobi v Royal Mail Group Limited.

Prior to the Efobi case, it had been understood that, where claimants bring a claim for discrimination under the Equality Act 2010, they must first prove facts from which a tribunal could conclude that the respondent (usually the employer) could potentially have committed an unlawful act of discrimination. If the claimant can discharge this burden of proof, the burden then falls to the respondent to prove that the alleged act was not an act of unlawful discrimination. This is often referred to as the ‘shifting burden of proof’ and it is unique to discrimination claims.

Mr Ike Efobi is black Nigerian and a citizen of the Republic of Ireland. He has qualifications in Information Systems and Forensic Computing.

Mr Efobi was employed by Royal Mail as a postman. However, he wanted to be employed in the management/IT service area of the business, so that he could put his qualifications to better use. Mr Efobi therefore made over 30 applications for various management/IT roles.

None of Mr Efobi’s applications were successful. He therefore brought claims for direct and indirect discrimination, victimisation and harassment on the grounds of race against Royal Mail.

The Employment Tribunal rejected all Mr Efobi’s claims apart from his victimisation claim and one complaint of harassment. The Employment Tribunal rejected Mr Efobi’s direct discrimination claim on the basis that he had failed to discharge his burden of proving facts from which the Tribunal could conclude that discrimination might have taken place.

Mr Efobi appealed against the dismissal of his direct discrimination claim.

The Employment Appeal Tribunal (the “EAT”) allowed Mr Efobi’s appeal. It held that there was no burden on a claimant to prove anything in a discrimination case. Rather, the tribunal has to look at the facts of the case as a whole, and it is a matter for the respondent as to whether it chooses to adduce evidence to disprove the allegations made by the claimant.

However, the Court of Appeal overturned that decision, and the case was then heard by the Supreme Court.

The Supreme Court has now had the last word on this question of the ‘shifting burden of proof’ and has, unanimously, overturned the decision of the EAT.

The Supreme Court confirmed that the Equality Act 2010 imposes an initial burden on the claimant to prove facts from which a Tribunal could conclude that the respondent could potentially have committed an unlawful act of discrimination, thereby reinstating the status quo.

However, the Supreme Court commented that it is important not to read too much into this. It is likely only to be of significance that the claimant has an initial burden of proof where there is room for doubt as to the facts of a discrimination case – for example, where it is unclear whether the alleged acts of discrimination took place at all. Where the facts are not disputed, the key question will be whether the respondent can prove that discrimination has not in fact occurred.

This is a helpful decision for employers as it confirms that, before a claimant’s discrimination claim can get off the ground, they must first prove the facts of their case.

However, in many cases the facts of a discrimination claim are not disputed: for example, it is often agreed that a claimant was dismissed, or that inappropriate comments were made towards them, but it is disputed that these acts amount to discrimination.

In those circumstances, it will not be difficult for the claimant to discharge its initial burden of proof and the burden will then immediately fall to the respondent to prove that discrimination did not in fact take place.

This case therefore serves as a useful reminder to employers that, even where allegations appear to be entirely vexatious, it is for the employer to disprove discrimination, rather than for the claimant to prove it.

Note the Equality Act 2010 does not extend to Northern Ireland, but the decision of the Supreme Court provides welcome clarification that the burden of proof remains with claimant to prove, on balance of probabilities, facts from which a Tribunal can establish there has been an unlawful act of discrimination.

You can read the Supreme Court’s full Judgment here.

Contributor: John Smith

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2021. Specific advice should be sought for specific cases. For more information see our  terms & conditions .

Stuart McBride

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29 July 2021

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Putting the Equality Act 2010 into Practice

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Summary of the impact.

The Equality Act 2010 (EqA) is the first major reform to equality legislation since the wave of UK equality legislation in the 1970s. The case deals primarily with the two most innovative aspects of the EqA — the Public Sector Equality Duty (s.149) and the Dual Discrimination provisions (s.14), which have formed the basis of Hazel Conley's research. The research has involved significant impacts with notable reach in relation to: (1) the policy and best practices of five local authorities, with other authorities also drawing on these lessons, (2) trade unions' priorities, strategies and representational roles in relation to equality objectives, including prompting 30 equal pay test cases, and (3) public policy in terms of promoting social justice and public debate, and advocating improvements to government policy.

Underpinning research

The case comprises two main research projects designed to explore how far the new legislative framework has required changes to existing practices and how equality could be promoted most effectively through the new Act. The projects draw on earlier research and theoretical ideas developed within the Centre for Research in Equality and Diversity. The EqA 2010 brought together over 100 pieces of existing legislation and included some innovations which promised to significantly change the legal definition of equality and its organisational practice. The projects focussed on the two most innovative aspects of the EqA: the Public Sector Equality Duty (s. 149) and the provisions addressing Dual Discrimination (s.14). The aims were to: a) investigate how the new and innovative provisions could be put into practice, b) identify best practice, c) consider how stakeholders could be supported to use the new legislative provisions most effectively, and d) the lessons for future legislative change. The underpinning research may be found in Conley and Page (2010), Conley (2012a, 2012b, 2013), Moore, Wright and Conley (2011, 2012)

1) The implementation of the Gender Equality Duty in local government

(Hazel Conley, QMUL and Margaret Page, University of the West of England) The first project, supported by a British Academy grant (£7,000, 2008-09) aimed to: (i) identify the opportunities and pitfalls of using the existing legislation to advance gender equality in the public services, and (ii) examine the conceptual and practical problems of integrating gender with the other equality objectives as was required by, what was then, forthcoming legislation. The research involved working with five major local authorities (Bristol, Leeds, Sheffield, Lewisham and Devon) to develop and share best practice on the Gender Equality Duty, as it then stood, and to prepare strategies for implementing the forthcoming Single Equality Duty. While actors at national and local level have stressed the need to embed gender equality measures, sustaining these measures remains precarious. The streamlining of gender equality within a generic positive duty to promote equality, as required by the Equality Act 2010, is uncertain, especially given the significant funding reductions facing the public services. The research output (Conley and Page, 2010) challenged the assumption that the new EqA Public Sector Equality Duty has strengthened gender equality as originally envisaged. Instead, the research evidence indicates that the specific duties contained in the Gender Equality Duty, prior to the EqA, already provided an effective tool for equality advisors in the pursuit of gender equality both for employees and public service users. Indeed the local government equality officers, who participated in the research, perceived a danger that any gains in equality measures, particularly gender equality, may be lost unless clear strategies are put in place. Given these concerns the research team produced an interpretive framework for local authorities to use in the development of policies and strategies to meet the new legislative requirements and embed equality strategies.

2) Discrimination in the workplace on multiple grounds — the role of trade union Equality Representatives (Hazel Conley; Sian Moore, Leeds University; Tessa Wright, QMUL) This exploratory research examined the experiences of trade union Equality Representatives (ERs) to gain an understanding of the complexities of dealing with discrimination on more than one ground and how these complexities might best be managed. The research was funded by the Advisory, Conciliation and Arbitration Service (Acas) (£10,000, during 2011). The ER role has arisen following the new provision for dual discrimination (s.14 of the EqA). ERs are a new form of workplace representative with a remit to address equality in its broadest form, rather than just a single equality strand such as women's or race equality. ERs are, therefore, well placed to deal with members' individual and collective experiences of discrimination on any or multiple grounds. The research explored the forms of combined discrimination by drawing on ERs' experiences and the measures taken to address discrimination, both in terms of legal remedies and action in conjunction with employers. Twelve interviews were conducted, including seven ERs, three other union officers and two union members referred to the research team as possibly experiencing multiple discrimination. All were from public sector unions: PCS, UNISON and the UCU. The government announced it was delaying the implementation of this part of the EqA in the 2011 Budget (HM Treasury 2011: 23). Research was therefore essential to assess what the impact of this delay might be. Research output (Moore, Wright and Conley, 2011) identified the difficulties of identifying dual discrimination, as conceptualised in the EqA, in practice and, therefore, its limited use in representing trade union members who may suffer multiple discrimination.

References to the research

** submitted to REF2014

Conley, H. and Page, M. (2010) `The Gender Equality Duty in Local Government: The Prospects for Integration' Industrial Law Journal Vol. 39 (3) pp 321-325, doi: 10.1093/indlaw/dwq017

** Conley, H. (2012a) `Using Equality to Challenge Austerity: New Actors, Old Problems' Work, Employment and Society 26 (2) pp 353-363, doi: 10.1177/0950017011432906

** Conley, H. (2013) `Trade Unions, Equal Pay and the Law' Economic and Industrial Democracy, on line, DOI: 10.1177/0143831X13480410

Conley, H. (2012b) `Economic Crisis, Austerity and Gender Equality: The UK Case' European Gender Equality Law Review 2012/2 pp 14-19 ISSN: 2212-5914

Moore, S., Wright, T. and Conley, H. (2011) `Addressing Discrimination in the Workplace on Multiple Grounds: The Experience of Trade Union Equality Representatives' Industrial Law Journal Vol. 40 (4) pp 460-465, doi: 10.1093/indlaw/dwr025

Moore, S., Wright, T., Conley, H. (2012) `Addressing Discrimination in the Workplace on Multiple Grounds: The Experience of Trade Union Equality Reps' Acas research paper 02/12 Acas: London

Details of the impact

1. The impact on the policy and best practices of local authorities and voluntary sector The research team developed an interpretive framework for those with equality responsibilities to use in developing the local policies and strategies required to meet the legislative requirements. This framework was further refined through a workshop with the five authorities led by the research team in December 2009. The framework sets out the underlying policy and public service guidelines and the best practice for integrating what had been quite separate duties on race, disability and gender duties, plus the addition of religion, sexuality and age strands in preparation for the EqA. All five local authorities have now adopted the framework. They are using this framework in the assessments against the Equality Framework in Local Government, a national standard whereby local authorities have to assess the extent to which they have achieved best practice on equality. As a direct result one major urban authority significantly improved their Equality Framework for Local Government rating to `excellent' (the range runs from `developing', `achieving', to `excellent').

"Following the research interviews we looked at our overall focus in the area of gender to ensure that it did not become marginalised with the increased focus on other protected characteristics. We used the research as support for, and under pinning, our self-assessment in this area. This led to a new approach around embedding equality in decision making with the introduction of a performance measure to understand the extent to which this takes place. The research also helped with our self-assessment against the excellent level of the Equality Framework for Local Government which we achieved in May 2011." (Strategic Equality Manager, Leeds City Council).

Impact is also very evident in those voluntary sector organisations which are using the public sector equality duties to pressure local authorities to improve their practice.

"Over the course of the meetings I had with you [Hazel Conley] and Margaret Page it became clear that Fawcett Southwest was far too tied to the County Council's apron strings. This completely hampered pro-active gender equality promotion, other than working with the County Council. I relayed to the tiny Exeter group your advice — about the need to achieve credible independence in order to effectively use the Gender Equality Duty (as it was in those days). We met, dissolved Fawcett South West, reformed as Fawcett Devon, opened our own bank account, established our independence and put ourselves onto the Devon 'map' of equality/diversity organisations by taking our Fawcett Devon stand to conferences and equality events. It was the best thing we could have done." (Exeter Councillor).

2. The impact on trade union's priorities, strategies and representational roles The research has made a significant contribution to enabling trade unions to pursue equality issues more effectively on behalf of their members. Conley has presented the research findings and outlined how unions can take up equality issues with employers in a range of seminars. These seminars have involved trade union workplace representatives from the local government sector as well as the banking and finance sector, a sector which the EHRC has targeted and investigated for its poor record on equality and diversity practice. In particular, she led a training session for the Unite union at their training and conference centre in Eastbourne (September 2012). The participant feedback points to considerable impact in the form of learning by union activists about how they can apply the lessons of research in representing their members and negotiating with their employers over equality issues. The research also created a resource for Equality Representatives at: www.acas.org.uk/index.aspx?articleid=2056 . Its presence on the ACAS website indicates that ACAS consider that the resource has significant value for users.

The research has had an impact on national trade union policies and priorities, providing the necessary evidence base for giving greater priority to equality issues. The Head of Local Government in the largest public sector union UNISON notes:

"I have attended a number of seminars at which Dr. Conley has presented her research on the Gender Equality Duty and the current Public Sector Equality Duty. I have found the information provided on how the Duties can be used by trade unions useful and thought-provoking and we have incorporated it into some of our work at UNISON, particularly when looking at the impact of austerity measures on a predominantly female workforce. Dr. Conley's research and other academic research on this issue has encouraged the union to prioritise the support and use of the duties in our future policies."

The team's research has had a very tangible impact in equipping the Transport and Salaried Staff Association (TSSA) with the evidence and strategy to mount equal pay cases which have compelled a formerly recalcitrant employer to begin negotiations with the Union advice. The team's analysis encouraged the Union to launch equal pay test cases, as the Assistant General Secretary has testified:

"You were very helpful in undertaking an initial analysis of the data and confirming that there was statistical relevance that suggested that in key bands (particularly three and four) there was evidence of gender pay inequality. Your support and advice allowed us to develop a more targeted approach to individual jobs within those grades. This second survey, gave us the ammunition to launch 30 equal pay claims (with a potential liability to the employer in excess of £1 million for back pay alone). The effect of this was that the employer, who had previously simply refused to accept that there was an issue, changed their attitude and agreed to enter into discussions... Your analysis was instrumental in moving our thinking on and focussing us on how the survey could provide a point of leverage to move the company from a position of denial to one of active engagement." Assistant General Secretary, TSSA.

3. Wider impact on public policy in terms of promoting social justice and public debate, and improving government policy

The Equality Act 2010 (EqA) had a turbulent start as its enactment coincided with a change of government and the global economic crisis. The government is now reviewing both the Public Sector Equality Duty and the Dual Discrimination provisions under the "Red Tape Challenge — Spotlight on Equalities" initiative. Given this review, Conley's research has made a major contribution to focussing attention on the social justice aspects of the legislation both within government and more widely in public debate, as well as potentially contributing to improved government policy.

The decision to review the legislation so close to its enactment gave little time for equality groups to assemble and interpret the limited information available, therefore Conley's contribution has been particularly significant in informing public debate and assessing the impact of the Act. Her research and advice has been much sought after as illustrated by:

(i) An invitation to address the `Equality and Diversity Forum Research Network seminar Evaluating the Equality Duty — where is the evidence?' (June 2012) together with representatives of the Government Equalities Office and the Equality and Human Rights Commission. Over 50 practitioners, policy-makers and academics attended. EDF highlighted the seminar as indicative of how research had informed their policy work over their first two years of existence:

"In June 2012, the Network held a seminar entitled `Evaluating the Equality Duty — where is the evidence?' Speakers from Oxford University, Queen Mary University of London, the Government Equalities Office and the Equality and Human Rights Commission considered what we know about the effectiveness of the Equality Duty and whether it is bringing about organisational change to secure better equality outcomes." ( www.edfresearch.org.uk )

(ii) An invitation to contribute to a publication of the European Commission's Network of legal experts in the field of Gender Equality. The European Network of Legal Experts assists the Commission `in the field of Gender Equality in order to help monitor the implementation of the EU acquis related to the principle of equal treatment between women and men in the EU countries and to develop new legal initiatives in this specific field.' The Network of Legal Experts informs the European Commission of important legal developments in the field of gender equality at national level and the impact of these developments. Published in 2012 at: http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9

(iii) The research findings have been submitted in evidence to House of Commons Business, Innovation and Skills Select Committee inquiry on `The Women in the Workplace' (Conley was the lead author with Durbin (UWE), Moore (UWE) and Wright (QMUL)). The research was cited on three occasions in the final report released in June 2013, which can be found at: http://www.parliament.uk/business/committees/committees-a-z/commons-select/business-innovation-and-skills/publications

Conley et al 's evidence on the public sector equality duty and equality impact assessments was reflected in the recommendations of the report. And two of the research team's key outputs (2010, 2011) were included in the evidence dossier produced by the Equality and Diversity Forum for the Government Equalities Office. Thus these outputs are major contributions to the government's review of the public sector equality duty. The document is available at: www.gov.uk/government/publications/evaluation-of-the-equality-act-2010-evidence-dossier

Sources to corroborate the impact

• Assistant General Secretary, TSSA (impact at the local level)
• European Network of legal Experts in the Field of Gender (impact at the international level)
• Strategic Equalities Officer, Leeds City Council (use of Dr. Conley's research in formulating equality policy in Leeds City Council)
• Head of Local Government sector, UNISON (impact at the national level)
• Councillor, Exeter City Council (impact at the local level)

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Equal Pay and the Equality Act 2010: An Accidental Paradox in Need of Change?

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The approach in the United Kingdom to sex-based equal pay has for a long time been distinct from general sex discrimination and from equal pay based on other protected characteristics. This dichotomy allows for a greater focus on sex-based equal pay, in a distinct statutory regime, but also risks creating unnecessary, unintended and detrimental distinctions. This article outlines the different legislative approaches adopted in pursuit of related public policy goals regarding equality and explores, and suggests legislative and interpretative solutions to, a significant issue whereby problematic wording in the Equality Act 2010, and judicial interpretation of it, could unjustifiably leave sex-based claimants in a worse position than those with other protected characteristics with regard to both to injury to feelings and constructive dismissal.

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Introduction

Provisions seeking to regulate equal pay between men and women in the United Kingdom have been in the statute books for over 50 years now. When the Equality Act 2010 was passed, with the aim, primarily, to consolidate, simplify and to a limited extent strengthen much of the British anti-discrimination laws that had emerged over the previous 40 years, Footnote 1 the decision was made to retain the historic dichotomy regarding equal pay. Thus, if the protected characteristic were sex, it would remain subject to specific provisions in a discrete chapter of the Equality Act whereas for other protected characteristics it would continue to come within the general discrimination provisions. Having a separate mechanism for sex-based equal pay claims creates not only a greater focus on the characteristic of sex, but also a potential and peculiar disadvantage for it. This article outlines the underpinning law of the different approaches before addressing significant issues arising from the difference. These regard both the nature of compensation and more fundamentally, and which current proposals for reform leave unaddressed, the construction of a barrier, uniquely, to some sex-based claims arising in constructive dismissal situations.

One reason for different treatment of sex-based equal pay from the approach taken for both ordinary sex discrimination and claims for equal pay based on other characteristics lies in the history of the law. The antecedent to current equal pay provisions, Footnote 2 the Equal Pay Act 1970, received Royal Assent in May 1970 (it being among the last pieces of legislation before the 1970 general election), Footnote 3 but was always intended to come into effect five years later. Footnote 4 The Act thus came into force on 29 December 1975 alongside the landmark Sex Discrimination Act 1975. The two Acts created two distinct systems whereby matters of equal pay for equal work, and subsequently work of equal value, would fall under the Equal Pay Act 1970 regime whereas matters regarding other discriminatory treatment would fall under the Sex Discrimination Act 1975. When the Race Relations Act 1976 was passed the following year—and for all subsequent protected characteristics—it was considered appropriate to deal with equal pay alongside other discriminatory terms and treatment rather than laying out discrete equal pay provisions. This article first discusses these different mechanisms before highlighting and exploring a particular restrictive consequence of the difference. It then suggests a minor amendment to resolve the arguably paradoxical position of the sex-based equal pay claimant being unjustifiably detrimentally treated by a preferential regime.

Moves to strengthen equal pay protection are not uncommon. In recent years, pay reporting and transparency have been among the focuses of proposed amendments to equal pay law. Footnote 5 The Fawcett Society have proposed a draft bill, Footnote 6 which, alongside greater transparency (through providing a right for employees to obtain information relating to the pay of a comparator Footnote 7 ; including equal pay within the statutory statement of employment particulars Footnote 8 ; and amending gender pay gap provisions), Footnote 9 also seeks to slightly reform time limits relating to sex-based equal pay Footnote 10 and to make available remedies for injured feelings, personal injury, and loss of pension rights for such claims. The proposal would provide an element of harmonisation between the protected characteristics in terms of compensation, but does not address the lack of harmonisation of available claim routes. Others have gone much further, suggesting more radical change, such as unifying the equal pay—and gender pay gap—provisions across the protected characteristics (e.g. Downie 2019 ). It may be the case that the time may not be right for such a major change, which would have to contest the appropriateness of adopting (and maintaining) disparate approaches to different problems according to their nature and history (discussed to a contextual extent below). However, the disparate approach threatens to prevent an important mode of claim (that of constructive dismissal) for women in specific circumstances. The specific focus of this article is thus not general potential reform or harmonisation of equal pay. Instead, after considering the history of the provisions, and the effect of the dichotomy on remedies, it raises and focuses on a less considered and generally more readily resolvable issue: namely that the Equality Act 2010 risks treating women (and, indeed, men), Footnote 11 as a protected group, less favourably by shutting off constructive dismissal as an avenue of redress, when it is readily available for other protected characteristics in pay disparity claims.

The Disparate Approaches to Equal Pay

Sect. 1(1) of the Equal Pay Act 1970 provided a symmetrical right between men and women by establishing that all employment contracts have an implied equality clause: that the terms and conditions of employees of one sex, working for the same employer, Footnote 12 should be no less favourable than those of the other sex (pay being one such term). The approach, accordingly, was a contractual one. Where differences in terms were experienced, such as where a woman’s Footnote 13 pay was less, the Equal Pay Act provided redress where: a) a woman’s work was established as being the same or broadly similar to a male comparator’s, Footnote 14 so long as any differences in work were ‘not of practical importance in relation to terms and conditions of employment’ Footnote 15 ; b) the woman’s work had been rated as ‘equivalent’ to the male comparator’s by a job evaluation Footnote 16 ; and, after some intervention from the European Court of Justice, Footnote 17 c) the work was considered to be of equal value to a comparator’s, in terms of the demand, skill and effort of the roles. Footnote 18

Where a claimant could show there was a less favourable term in their contract, through job evaluation or comparator, a defence was open to the employer if they could establish that the difference in pay was genuinely due to a ‘material difference’ between their employment situations. Footnote 19 ‘Material differences’ were defined as being differences that would be reflected in the terms and conditions of employment, Footnote 20 rather than any trivial differences. Footnote 21

The equal pay provisions contrasted with the generalised approach to non-discrimination promulgated by the Sex Discrimination Act 1975, and with the subsequent string of discrimination legislation starting with the Race Relations Act 1976. The Sex Discrimination Act 1975 prohibited direct and indirect discrimination on the basis of sex. This made it unlawful (across various fields) for certain people to treat women and men in a less favourable way than they would treat the other sex (direct) Footnote 22 or to impose requirements or conditions that could be fulfilled by a much smaller proportion of one sex than the other unless there was a justifiable (non-sex based) reason for the requirement (indirect). Footnote 23 Within the employment field, the Sex Discrimination Act 1975 and subsequently the Race Relations Act 1976 (and then further legislation covering disability, sexual orientation, religion or belief and age) prohibited discrimination during the processes of hiring, employing and dismissing staff. This took an essentially tortious approach by stating it is unlawful to discriminate by doing certain things. Footnote 24 The tortious nature was further evident through the definition of the financial remedy, it being an ‘amount corresponding to any damages [that] could have been ordered by a county court or by a sheriff court to pay to the complainant if the complaint’ had fallen to be dealt with as a tort or, in Scotland, a breach of statutory duty. Footnote 25 A significant difference between the sex discrimination model and race discrimination model, as they emerged in the mid-1970s, was that the latter did not differentiate between employment contract provisions (such as pay) and discrimination not relating to the employment contract. The pre-employment unlawful acts were essentially identical across the protected characteristics. Footnote 26 And, indeed, the sub-sections outlawing discrimination in employment were also highly similar (covering dismissal, detriment and access to opportunities, etc.), Footnote 27 except that the race relations provision included an additional unlawful act, relating to the ‘terms of employment’ afforded to the claimant. Footnote 28 With the exception of separating out pre-employment and in-employment aspects, this substantially replicated the approach as regards employment-field unlawful acts of the predecessor Race Relations Act 1968. Footnote 29 While the Sex Discrimination Act 1975 is seen as the progenitor of that generation of discrimination legislation, and deservedly so in terms of enforcement and general structure, the expansion of grounds in the 1990s (disability) and 2000s (religion or belief, sexual orientation and age) adopted the Race Relations Act 1976’s exclusively tortious, non-contractual, approach.

While the Race Relations Act’s comprehensive approach allowed for a much more straightforward, coherent approach to discrimination law, sex discrimination arguably benefits from the distinct focus on equal pay and from the potential for using the longer, contractual, limitation periods. Footnote 30 However, the contractual/non-contractual split adds complexity. Footnote 31 The general prohibition of discrimination approach, rather than equality of terms, allows for a broader consideration of unequal treatment. The equal pay provisions revolve around comparison, requiring a specific comparator or group of comparators to be named by the claimant in proceedings. The claimant has the high burden of showing someone is in the same employment, doing like work, work of equal value, or work rated as equivalent, and that that person has more favourable terms. The wording of general anti-discrimination legislation, however, clearly left room for the hypothetical comparator: direct discrimination, for example, being where an employer treats an employee ‘less favourably than he treats or would treat other persons’. Footnote 32 Unlike in equal pay cases, a general discrimination claim would not fail (even if regarding the terms of employment) for lack of a real comparator. Here, at least, there was some change when the Equality Act 2010 was introduced, but other long-standing concerns Footnote 33 were ignored.

Equal Pay in the Equality Act 2010

Hopes that the simplifying and unifying Equality Act 2010 would remedy concerns about the complex provisions were, for the most part, dashed when it largely replicated the provisions of the Equal Pay Act 1970 within Chapter 3 of the Employment part of the new Act. Footnote 34 While equal pay is now encompassed in the general equality legislation, it is still treated completely distinctly from sex discrimination. Section 66 of the Equality Act 2010, therefore, follows the same pattern of construction as the 1970 provisions, and ensures that an employment contract without an explicit sex equality clause will have an implied term to the same effect, stating:

If the terms of A’s work do not (by whatever means) include a sex equality clause, they are to be treated as including one.

A sex equality clause is a provision that has the following effect—

if a term of A’s is less favourable to A than a corresponding term of B's is to B, A’s term is modified so as not to be less favourable;

if A does not have a term which corresponds to a term of B's that benefits B, A’s terms are modified so as to include such a term.

Subsection (2)(a) applies to a term of A's relating to membership of or rights under an occupational pension scheme only in so far as a sex equality rule would have effect in relation to the term.

In the case of work within section 65(1)(b), a reference in subsection (2) above to a term includes a reference to such terms (if any) as have not been determined by the rating of the work (as well as those that have).

The effect of this wording is that the legislation still works so that any contractual term, including those not relating to remuneration, are the subject of the sex equality clause and can be adopted into the employment contract of the aggrieved party as a result of a complaint. This can be beneficial as assessing equality on a term-by-term basis can lead to a situation where a woman’s overall ‘deal’ with her employer (contractual benefits, remuneration etc.) is better than a man’s, who is doing equal work, as any individual favourable term from his contract would have to be amended/added into hers.

It remains the case that the sex equality of terms provisions in the 2010 Act are still functionally different from the general prohibition of discrimination, in that, mostly, a particular comparator is still required and the burden of proof is on the claimant to establish the comparability of work with someone with more favourable terms, rather than general ‘less favourable treatment’. The equality clause still only takes effect if the claimant can show that they are employed in like work, Footnote 35 work rated as equivalent, Footnote 36 or work of equal value, Footnote 37 and the employer still has the ‘material factor’ defence Footnote 38 (although the wording is tweaked to include the effect of EU law with regard to indirectly discriminatory pay and to omit ‘genuine’, ‘since the adverb added nothing to the meaning’). Footnote 39

Moreover, despite the consolidation into one Act, there is still a concrete segregation between equal pay claims and sex discrimination claims, as Sect. 70 of the Equality Act specifically bars contractual inequality from falling under the provisions on sex discrimination. The Sex Discrimination Act 1975 had previously delineated the roles of the Equal Pay Act 1970 and the Sex Discrimination 1975 by stating in Sect. 8(5) that an employer’s act would not contravene Sect. 6(2) of the Sex Discrimination Act if it contravened a term modified or included by virtue of an equality clause (or it would have contravened such a term were it not for the operation of genuine material factor defence). This rolled through into the Equality Act 2010 through Sect. 70 which holds that

The relevant sex discrimination provision has no effect in relation to a term of A’s that:

(a) is modified by, or included by virtue of, a sex equality clause or rule, or

(b) would be so modified or included but for Sect. 69 or Part 2 of Schedule 7 with subsection (3) providing a table which shows that the relevant sex discrimination provision for employment is Sect. 39(2). While it may be necessary to delineate the areas protected by contractual equal pay from tortious discriminatory detriment—although superfluity is not unknown in the Equality Act 2010 Footnote 40 and it is now well established that contract and tortious claims can co-exist Footnote 41 —and the ills of unequal pay between the sexes may somehow still be different from the likes of racial or disability equal pay, such delineation if misplaced could cause unjustifiable problems for claimants.

Before examining this further, it is worth noting a few areas where the 2010 Act differs from the 1970 Act. Footnote 42 With regard to comparators, the Equality Act 2010 introduced a novation, and a partial blurring of the lines with regard to equal pay, by providing in Sect. 71 for an exception to the requirement for an actual comparator. It allows, where the statutorily imposed equality clause is not operable in a pay disparity dispute (i.e. when the individual cannot point to an actual male comparator), for a hypothetical comparator to be used, with the claimant using the general provisions for direct discrimination. With regard to discreet sex-based role-segregation, two further sections aid disclosure of information which may help to shed light on the issue and help to combat it. Sect. 77 renders attempts to restrict disclosure of an employee’s pay void if the disclosure is intended to help find out whether between pay and a particular protected characteristic and Sect. 78 provides for the publication of gender pay gap information. Footnote 43 However, while these provisions can help sex-based claimants, when compared to the other protected characteristics, the essential contractual nature of the equal pay provisions creates some particular issues. These are, firstly, with regard to compensation for injury to feelings (an area which the Fawcett Society proposals seek to address) and, more fundamentally, with the availability of constructive dismissal, placing the protected characteristic of sex, and thus predominantly women, in an unfavourable position.

The Unfavourable Position of Sex Equality Equal Pay Claimants: (i) Introduction and Injury to Feelings

While contractual and tortious actions and remedies can co-exist, they are intended to do different things and at common law are subject to different rules and constraints (although statute can intervene). The effect of this difference when it comes to the dichotomous approach to equal pay can be quite profound. If, for example, a black man, an Asian woman, a young or disabled person, or an adherent of a religion discovered they were being paid less than a comparator from a different racial or age or other such group and that treatment was because of their protected characteristic, they could bring an action for direct discrimination as such treatment on those grounds is rendered unlawful by Sect. 39(2)(a) of the Equality Act 2010. If they felt that they could no longer work for the firm, the unlawful act could be dismissal, under Sect. 39(2)(c), if such discrimination was deemed to be in breach of contract (as constructive dismissals are included within the definition of dismissal in the Act). Footnote 44 Similarly, if a woman, following the introduction of Sect. 71, which as noted above was the main change in the Equality Act 2010 regarding equal pay (and, indeed, one of the small areas where protection was increased by the Act), could find no actual comparator under the equal pay provisions, she may have a remedy. Under the section she could potentially establish that a hypothetical comparator would be better treated in terms of pay, and she too could bring an action for direct discrimination rendered unlawful by Sect. 39 (be it for unequal terms or dismissal). But where a woman can point to an actual comparator, she must bring her claim through the contractual equal pay provisions. While the aim of compensation in tort is to put the parties in the position they would have been in had the tort not occurred, and encompasses non-economic (as well as economic) loss, Footnote 45 when looking at contractual equal pay, as noted by Burton P in Newcastle Upon Tyne v Allan & Ors , ‘[t]here is a distinct absence from the Equal Pay Act of any provision for recovery of non-economic loss’. Footnote 46

The contractual nature of the equal pay provisions therefore entails, as with wrongful dismissal Footnote 47 and unfair dismissal, Footnote 48 there should be no recovery for injury to feelings. While there can in contract, exceptionally, be awards for injury to feelings, such as ‘[w]here the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation’, equal pay does not fall within that restricted category. Instead it falls among the general run of contracts where there is no liability ‘for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation’ Footnote 49 (to quote Bingham LJ in a different context but invoked by Burton P). Footnote 50 This contrasts with the tortious, or quasi-tortious, discrimination claim where recovery for injury to feelings is almost automatic, it being, in general, inherent in the claim to varying extents. Footnote 51 This distinction is maintained by the Equality Act 2010. As noted by Hand HHJ in BMC Software Ltd v Ms A Shaikh , ‘the two statutes [the Equal Pay Act and the Sex Discrimination Act] [were] mutually exclusive… It seems to me that is also the object of Sect. 70 EqA and that separation of remedies is preserved by Sects. 124 (breach of discrimination provisions) and 132 (breach of an equality clause)’. Footnote 52

There is, accordingly, strong and wide authority that contractual equal pay provisions do not allow for claims for injury to feelings. However, as proposed by the Fawcett Society, it would be open to Parliament to change the statutory basis if it so wished. While the common law grounding explains why sex is treated differently from the other characteristics, it is by no means clear why in principle it should be, other than as part of the swings and roundabouts of different systems which see sex based equal pay claims advantaged in a number of other of ways. These include the longer contractual limitation periods (although that may of limited and diminishing value) Footnote 53 and the term by term comparison rather than the holistic/balancing approach of discrimination. Footnote 54 As the lower band for injury to feelings is, at time of writing, set at £990-£9,900 (with the middle band going up to £26,600 and the higher band to £49,300), with annual increases to reflect inflation, Footnote 55 the sum is not insignificant. However, of potential greater significance is the prevention of an alternative claim.

The Unfavourable Position of Sex Equality Equal Pay Claimants: (ii) Constructive Dismissal

(a) constructive dismissal within the equality act.

Slightly more controversially, going beyond compensation, the same argument can be, and has been (as explored below), made that Sect. 70 prevents a claim for constructive dismissal under Sect. 39(2) as the two systems are mutually exclusive. However, this is arguably paradoxical. It is the contractual nature of the equal pay provision that, without legislative intervention, prevents broader, tortious remedies being available; but it is also that contractual nature that acts as a block to a claim that is essentially contractual in nature.

In BMC Software Ltd v Ms A Shaikh, at first instance, the Employment Tribunal did hold that breach of the equality clause inserted by Sect. 66(1) of the Equality Act 2010 could give rise to constructive dismissal claims, holding:

We find that the equality clause lies at the heart of the relationship of trust and confidence between employer and employee. It is fundamental to the relationship, and breach of it is objectively likely to destroy or seriously damage the relationship. Error or misunderstanding by the employer do not amount to proper cause for the breach. The breach was referred to prominently as a material consideration in her resignation letter, and we accept that in so writing, the claimant accurately expressed the considerations which led her to resign. Accordingly, such of the claimant’s claim of constructive dismissal as relies upon breach of the statutory equality clause succeeds and is upheld. Footnote 56

Significantly, they started that paragraph by saying ‘[f]or avoidance of doubt, we find under this heading that the claim of constructive dismissal succeeds both under the [Employment Rights Act] 1996 and under Sect. 39 of the Equality Act 2010.’ Footnote 57 However, on appeal, Hand HHJ took issue with this. Indeed, a literal reading of Sect. 70 provides support for the view that Sect. 39 has no effect in relation to a term either modified by, or included by, a sex equality clause or rule. In the Employment Appeal Tribunal judgment, he went on to rebuff suggestions that the provisions of the Equality Act 2010 should be given a broad interpretation under indirect effect so as to comply with European legislation, such as happened in Rowstock v Jessemey [2014] EWCA Civ 185, or that the European provisions should have horizontal direct effect, as in Kücükdeveci v Swedex GmbH [2010] EUECJ C-555/07 and Benkharbouche v Embassy of the Republic of Sudan [2015] EWCA Civ 33. He took this approach on the bases that the legislation was clear and so there was no lacuna to fill; it fully implemented the Equal Treatment Directive; and that that directive provided a significant amount of discretion to member states to determine compensation. Footnote 58 None of these points were subject to the appeal at the Court of Appeal (which reversed the case on the reasoning of the material factor defence and the process of remittal) and so were not commented on. Likewise, the Court of Appeal did not have occasion to comment on some more worrying but opaque obiter dicta which could see non-Equality Act claims further restricted.

(b) Constructive Dismissal: Outside the Equality Act

While a case can thus clearly be made (although a counter interpretation is considered further below when considering possible amendments) that Sect. 70, by holding that Sect. 39(2) has no effect where there is a sex equality clause, excludes discrimination claims under Sect. 39(2)(c) including constructive dismissal, the judge mooted that the exclusion could go further. He declined to comment further beyond noting that his judgment did not affect the Tribunal’s finding that there had been a constructive unfair dismissal, as Eady HHJ (who heard the preliminary appeal hearing) did not allow that ground of appeal to proceed, and so nothing he had ‘said can have any bearing on that aspect of the case’ but added ‘although, perhaps, it is a topic on which more might need to be said on some future occasion.’ Footnote 59 In so doing he raises the prospect of a further exclusion joining the Johnson exclusion area, named after the House of Lords decision in Johnson v Unisys . Footnote 60

In Johnson v Unisys , Footnote 61 the House of Lords held that loss arising from the unfair manner of a dismissal is not recoverable in contract, for breach of the implied term of mutual trust and confidence, as the implied term could not extend into territory specifically intended by Parliament to be governed by the unfair dismissal legislation. The ‘Johnson exclusion zone’ has variously been described as ‘contentious’ (Deakin and Morris 2009 para 5–45), giving ‘rise to difficult boundary disputes’ (Brodie 2002 p. 260), ‘productive of anomalies and difficulties’ (Hale in Edwards ), Footnote 62 a case which ‘sticks in the craw’ for many labour lawyers (Barnard and Merrett 2013 p. 323), and ‘one of the most notorious and controversial judgments of the twenty-first century’ (Bogg and Collins 2015 p. 185). The scope was limited a few years after the decision, when the House of Lords distinguished between loss occasioned by a dismissal and where, ‘an employee has acquired a cause of action at law, for breach of contract or otherwise’ before the dismissal, ‘whether actual or constructive’. Footnote 63 In the former case, the exclusion area applies; in the latter the cause of action is unimpaired. A seven-member UK Supreme Court followed those cases in 2011 and, by a majority, extended the application to express terms. Footnote 64

The question of constructive dismissal and the Johnson exclusion zone was later considered by the EAT in Gebremariam v Ethiopian Airlines . Footnote 65 That case included the complicating factor of the fundamental breach relating to a failure to follow normal, fair redundancy processes and a subsequent withdrawal of the dismissal. Even in that case, it was held that the conduct of the employer ‘took place before any dismissal could have taken place’ and ‘were not steps leading to the dismissal’, Footnote 66 and so fell outside the Johnson exclusion zone. Furthermore, rather than being an attempt to use the common law wrongful dismissal claim to ‘conflict with the statutory jurisdiction as to unfair dismissal’ Footnote 67 (the mischief that the exclusion zone is designed to prevent), the claim as to constructive dismissal was actually part of an unfair dismissal claim and so no conflict or subversion arose. Contrasting the situation in Gebremariam with that in BMC Software Ltd v Ms A Shaikh , it can be said that a breach of an equality clause, as in the latter, is much further removed from steps leading to a dismissal than is a mishandled redundancy (as in the former). Furthermore, while a constructive wrongful dismissal action may raise Johnson exclusion zone issues, Footnote 68 and a Sect. 39 Equality Act 2010 claim could, as set out above, be barred by Sect. 70, a claim under the Employment Rights Act 1996 would seem even more to have ‘no basis in law or logic which would or should disable that employee from relying on the employer's treatment… constituting or as being part of the breaches of contract upon which he or she relies to justify his or her resignation and subsequent claim for unfair dismissal.’ Footnote 69 While legislative intervention is required if compensation for injury to feelings is to be extended to gender equal pay claims (other than those where no comparator is available allowing for a direct discrimination claim following the introduction of Sect. 71), and may be required with regard to allowing s.39 claims for constructive dismissal, when it comes to constructive unfair dismissal an interpretative approach should be sufficient.

How the Equality Act could be Interpreted/Amended

(a) remedies.

Firstly, and briefly, with regard to remedies, the Equal Pay Bill (HL Bill 65), introduced in the 2019–21 session by Baroness Prosser and written by a panel convened by the Fawcett Society, Footnote 70 sought to deal with the disparity between equal pay and other claims by simply proposing the insertion of the phrase ‘, which may include compensation for injured feelings, personal injury, and loss of pension rights,’ after the reference to ‘damages’ in Sect. 132(2)(b) of the Equality Act 2010. Footnote 71 These are routinely claimable in other discrimination claims and when it comes to injury to feelings the cost is not likely to be very high but would provide an adequate remedy to the claimants and end a situation whereby the law seems to be portraying sex-based non-equal pay as less injurious to feelings than when based on other protected characteristics.

(b) Constructive Dismissal—an Interpretative Approach

With regard to constructive dismissal within the Equality Act 2010, while on first reading it seems plain that a literal reading of Sect. 70—like its predecessor—precludes all of Sect. 39(2) from having effect where a sex equality clause is present (or would be but for a material factor defence), a different interpretative approach could be taken. It could be argued that such a literal reading goes against the expansionist approach evident in Sect. 71 (which, as noted above, provides for the exception to the Sect. 70 demarcation between pay and discrimination by allowing a direct discrimination claim, and thus a hypothetical comparator to be used, where the sex equality clause has no effect). On the other hand, the argument can be made, as indeed was the case in BMC Software v Shaikh , that Sect. 71 was meant just to be a limited alternative which allowed liability for direct discrimination in circumstances where Sect. 70 did not apply and should not be taken to allow for wider exceptions (as the Court of Appeal in Ali v Capita Customer Management Ltd; Chief Constable of Leicestershire v Hextall put it, it acts as a tempering of the mutual exclusivity). Footnote 72

When considering the effect of Sect. 71, it is notable that there has been little judicial comment on the section so far. Footnote 73 Westlaw reports 13 cases as having cited Sect. 71. Footnote 74 Of those one is BMC Software v Shaikh (as discussed above), one merely mentions the section in passing, Footnote 75 and nine are mis-citations (generally for the racial equality duty which used to be in Sect. 71 of the Race Relations Act 1976). Footnote 76 The remaining two cases address specific pregnancy related aspects. In the first of those cases ( Ali v Capita Customer Management Ltd; Chief Constable of Leicestershire v Hextall ), the Court of Appeal’s decision appears to be based on a concession by the employer that the equality clause had no effect, with the result that Sect. 71 could apply (although Mr Hextall went on to lose because there was no discrimination, not least due to the special provisions regarding to pregnancy/maternity). Footnote 77 The other case, however, City of London Police v Geldart , Footnote 78 suggests an interpretative approach to including constructive dismissal may be possible.

Sect. 71(1) states that the ‘section applies in relation to a term of a person's work—a) that relates to pay, but (b) in relation to which a sex equality clause or rule has no effect’. Subsection (2) goes on to state that the ‘relevant sex discrimination provision (as defined by Sect. 70)’, which would otherwise be excluded by Sect. 70, ‘has no effect in relation to the term except in so far as treatment of the person’ amounts to direct discrimination under that provision. In City of London Police v Geldart , Underhill LJ described the section as ‘rather opaque’ Footnote 79 and considered that the demarcation by the two sections was ‘drawn in rather elaborate terms’. Footnote 80 The case concerned a City of London police constable who, while on maternity leave, only received a portion of the London allowance she claimed to be entitled to leading to a direct discrimination claim (which the Court of Appeal dismissed on the basis that while she was entitled to the money, the failure to pay it was not due to her maternity leave or sex but simply her absence) Footnote 81 and an indirect discrimination claim (leading to consideration of Sect. 71). In noting that Sect. 71 applies in relation to a term of a person's work (relating to pay but, in that case, for which a sex equality clause has no effect), Underhill LJ differentiated the existence and nature of terms from the breaches of them, holding that the claimant’s claim:

is not that she has been discriminated against “as to [her] terms of employment” within the meaning of section 39 (2) (a): those terms afford her the same rights to London Allowance as a man. Rather, her claim is that the Commissioner has discriminated against her by failing to accord her her “contractual” rights—that is, by acting in breach of them. As a matter of formal analysis, the relevant head of section 39 (2) is (d) – “subjecting [her] to any other detriment”. Footnote 82

It thus fell outside the scope of Sect. 71 as it did not involve reliance on the particular kind of discrimination, that is the terms of employment, with which Sect. 71 is concerned. Footnote 83

The other part of the elaborately drawn pair of provisions, Sect. 70, states as regards pay that the ‘relevant sex discrimination provision has no effect in relation to a [emphasis added] term of A's that—(a) is modified by, or included by virtue of, a sex equality clause… or (b) would be so modified or included but for [the material factor defence]’. Footnote 84 The opacity in Sect. 71 would seem primarily to be due to when the sex equality term has ‘no effect’ Footnote 85 but that is, as exampled in the explanatory notes, and as accepted in BMC Software v Shaikh and in Geldart , where there is no actual comparator to whom the claimant can point. Footnote 86 Both Sect. 70 and 71, however, include reference to there being ‘no effect in relation to [a/the] term’ with the description of terms being defined afterwards in the case of Sect. 70 and beforehand in the case of Sect. 71 (which may explain the differing indefinite/definite article). While in Geldart the term in question was not one inserted by a sex equality clause, the definition of the relevant sex discrimination provision is explicitly the same across the two sections. If it is permissible to make a distinction between Sect. 39(2)(a) terms and s.39(2)(d) re other detriment in one, it could be possible in the other. This is particularly so in light of the illogical situation created by Sect. 71 whereby the lack of an actual comparator can give rise to greater claims including constructive dismissal (as Sect. 71 would allow a direct discrimination claim) than would be the case if there was an actual comparator (which would preclude the operation of Sect. 71). This bizarre situation did not arise under the Equal Pay Act 1970 as there was no such provision as Sect. 71. The situation is a function of transposing Sect. 8(5) of the Equal Pay Act 1970 into Sect. 70 of the Equality Act 2010 without taking account of the new provision.

(c) Constructive Dismissal—an Amendment

It may well not, however, be for the courts to iron out the illogicality here through judicial interpretation—as they did in Rowstock v Jessemey concerning the ‘decidedly opaque’ Sect. 108(7) regarding victimisation Footnote 87 —as, while this has decidedly peculiar effects, and can reasonably and pejoratively be described as elaborate, it is to some, perhaps a significant, degree less opaque. Footnote 88 Instead, it may be better for Parliament to amend Sect. 70, better delineating where it and Sect. 71 apply.

If an element of mutual exclusivity is to be maintained, then disapplying (or rendering of no effect) Sect. 39(2)(a) as regards terms makes perfect sense. There may also be a reason to extend that to Sect. 39(2)(b) (the way employers afford employees access, or by not affording them access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service) in so far as that may involve terms, but it would be interesting to see the explanation for that. Similarly, an argument could be made that the paragraph covering subjecting the employee to any other detriment (under s.39(2)(d)) should be treated in the same way as Sect. 39(2)(a) depending on the innate limitation of ‘other’ – although Underhill LJ considered the permissible relevant head in Geldart was Sect. 39(2)(d) so there is strong argument not to do so. The table in Sect. 70(3) which sets out the relevant sex discrimination provisions could be amended to specify the paragraphs within Sect. 39(2) (and the related public and private officeholder provisions) which are disapplied, omitting at least paragraph 39(2)(c) (dismissal). This would also accord with the Explanatory Notes which specify in paragraph 242 that the disapplied ‘sex discrimination provisions prohibit sex discrimination in relation to non-contractual pay and benefits such as promotion, transfer and training and in relation to offers of employment or appointment’. Footnote 89 Dismissal is not expressly mentioned there and nor can it be said in any way to be a benefit.

Over fifty years on since the provisions were originally passed by Parliament, over 45 years since they came into effect and over a dozen years since they were predominantly replicated into the generally otherwise unifying Equality Act 2010, it may be time to consider whether the equal pay provisions for the protected characteristic of sex should continue to be distinct from the other protected characteristics and from the general discrimination provisions. With the increased focus on intersectionality and pay gaps, and a greater focus on proactivity rather than simple prohibition, the time for major reform may be ahead; but major reforms often take considerable time and in the interim smaller amendments may be beneficial. The Fawcett Society’s proposals lay out a number of such small reforms, increasing the availability of information (requiring disclosure of comparator’s pay, amending the Sect. 1 statement of particulars and deepening the gender pay gap reporting requirement to catch more firms and broadening it to ethnicity) and tweaking both the time limit (allowing for just and equitable extensions) and remedies (so that claimants could recover compensation for injury to feelings, personal injury and loss of pension rights in line with discrimination claims). Alongside, or ahead of, these, in light of the decision in BMC Software Ltd v Ms A Shaikh it may also be necessary to amend the Equality Act so as not to limit the availability of constructive dismissal when it comes to sex based equal pay claims.

Data Availability

For the most part, no new data were created for the article, however where data has been created, the authors confirm that the data from which the findings are derived are available within the article.

See e.g. Hepple ( 2014 ), Hand, Davis & Feast ( 2012 ), Ashtiany (2012). The term British is used here as the Northern Ireland anti-discrimination takes a different form and the Equality Act (and its forerunners) are part of the law of England & Wales and, for the most part, the law of Scotland.

Contained in Chapter 3 of Part 5 of the Equality Act 2010.

Hansard HC Deb vol 801 col 2130 (29 May 1970) https://api.parliament.uk/historic-hansard/commons/1970/may/29/royal-assent ; the Equality Act 2010 also mirrored the Equal Pay Act 1970 in being among the last pieces of Labour government legislation to receive Royal Assent before an election which the Labour Party lost (Hansard HL Deb Vol 718, col 1738 (8 April 2010) https://publications.parliament.uk/pa/ld200910/ldhansrd/text/100408-0013.htm#10040856001075

e.g. Hansard HC Deb vol 811 col335W (15 February 1971 WA) https://api.parliament.uk/historic-hansard/written-answers/1971/feb/15/equal-pay#S5CV0811P0_19710215_CWA_187

As can be seen in e.g. Global Institute for Women’s Leadership and the Fawcett Society ( 2021 ); Hooton and Pearce ( 2023 ).

Fawcett Society ( 2020 ); discussed in Hand and Hooton ( 2022 ).

Building on the Equality Act 2010’s provision (in Sect. 77) making such disclosures a protected act.

Under Sect. 1 of the Employment Rights Act 1996.

By reducing the threshold to employers with 100 staff, introducing mandatory action plans, and extending the reporting to include the ethnicity pay gap. See e.g. Equal Pay Bill (HL Bill 65) (Session 2019–21), Equal Pay (Information and Claims) Bill (Private Members' Bill (under the Ten Minute Rule) (Session 2019–21), HC Deb Vol 682, col 909 (20 October 2020).

By, as with discrimination claims, allowing a ‘just and equitable’ extension to the time limit.

Equality Act 2010, s 64(1).

This includes those who are ‘employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant class’ (Equal Pay Act 1970, s 1(2)).

‘Woman’s work’ or ‘woman’ are used here as the typical example of an equal pay claim dichotomy, with women usually being subject to the less favourable employment terms. However, it is important to note that equal pay works symmetrically.

Equal Pay Act 1970, s 1(2)(a).

Equal Pay Act 1970, s 1(4).

Equal Pay Act 1970, s 1(2)(b), (5).

Case 61/81 Commission v UK [1982] ECLI:EU:C:1982:258 leading to The Equal Pay (Amendment) Regulations 1983, SI 1983/1794 to better implement Council Directive 75/117/EEC and Article 119 EC Treaty (now Article 157 TFEU).

Equal Pay Act 1970, s 1(2)(c).

Equality Act 2010, s 1(3).

Pass v Lawton [1976] IRLR 366.

Such as where, in Walton v Wellington College as noted by Rendel ( 1978 , p. 906), the male comparator moved milk bottles and stoked the boiler, which the woman did not. It is notable that despite the relative simplicity of the justification step, the Court of Appeal’s interpretation of the material factor defence has been criticised for its complexity (in Armstrong v Newcastle upon Tyne NHS Hospital Trust [2006] IRLR 124 the Court suggested if the employer can show that the difference in pay is not tainted by sex discrimination, there being a genuine non-sex related reason for the variation in the circumstances, this would defeat an equal pay claim; and if the employer could not then they must show an objective justification for the difference in pay), which has been described as potentially giving employer’s two bites at the defence cherry (Steele 2010 , p.264).

Sex Discrimination Act 1975, s 1(1)(a).

Sex Discrimination Act 1975, s 1(1)(b).

See e.g. Sex Discrimination Act 1975, s 6(1),(2); Race Relations Act 1976, s 4(1),(2).

See e.g. Sex Discrimination Act 1975, ss 65(1), 66(1); Race Relations Act 1976, ss 56(1), 57(1).

Sex Discrimination Act 1975, s 6(1)(a)-(c); Race Relations Act 1976, s 4(1)(a)-(c).

Sex Discrimination Act 1975, s 6(2)(a); Race Relations Act 1976, s 4(2)(b) covering ‘affording access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford’ access to them; Sex Discrimination Act 1975, s 6(2)(a); Race Relations Act 1976, s 4(2)(b) covering discrimination during dismissal or subjecting those with a protected characteristic to any other detriment.

Race Relations Act 1976, s 4(2)(a).

The Race Relations Act 1968 prohibited race discrimination in the form of refusing employment that is available and for which the individual is qualified (s 3(1)(a)), in the form of refusing like terms of employment with others similarly qualified (s 3(1)(b)) or dismissing the individual in instances where others are or would not be dismissed (s 3(1)(c))—though enforcement was indirect through applications to the Race Relations Board who would decide whether to take legal proceedings.

Claims can be brought in the Employment Tribunal within six months (Equality Act 2010, s 129) or due to concurrent jurisdiction through the court system and thereby be subject to the standard six year contractual limitation period (but also the court costs regime which may see costs not follow the event if a claim could reasonably have been brought in time to an Employment Tribunal ( Birmingham City Council v Abdulla and others [2012] UKSC 47, [29]-[30]).

Not least because of the impact of EU law regarding sex discrimination before the UK left the EU, with the broad approach to equal pay in EU law better reflecting the national sex discrimination provisions than the specific contract-centred approach to equality of terms, creating tension between the two legal frameworks.

See e.g. Race Relations Act 1976, s 1(1)(a).

For instance, the inability of the Acts to deliver equality of access to particular roles. Or, that neither job evaluations nor comparators took into consideration the undervaluing of typical ‘women’s work’, as per (respectively) Barrett ( 1971 , p. 310); Simpson ( 1981 ); Seear ( 1971 , p. 314).

On the replication and dashed hopes, see, e.g. Gow and Middlemiss ( 2011 ), Hand et al 2012 , p. 522; on hopes ahead of the Act, see e.g. Fredman ( 2008 ).

Equality Act 2010, s 65(1)(a).

Equality Act 2010, s 65(1)(b).

Equality Act 2010, s 65(1)(c).

Equality Act 2010, s 69.

Explanatory notes to the Equality Act 2010, para 239.

see, e.g., the concept of associative discrimination within s 13(1) (and exampled at Explanatory Note para 63) and discriminatory instructions within s 111(5)(a); the overlap between discrimination arising from a disability (s 15) and indirect discrimination (s 19); and, as noted in Hand ( 2011 ) the non-introduced dual discrimination provisions (which, the government contended, could be a greater multiple through combining its use with s 13 undermining the rationale to have a separate, limited provision).

e.g. Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; Taylor (2019).

The equal pay provisions in the 2010 Act, being very similar, face similar criticisms to those found in the 1970 provisions: there are still structural challenges to equal pay claims, women may struggle to find a suitable comparator and the comparative approach in general is criticisable for being vulnerable to prevailing unconscious biases or norms that discriminate against women more discreetly, manifesting as sex-based segregation in roles/duties or subconscious weighting in favour of ‘male’ roles in the process of job evaluations.

As noted above the Fawcett Society’s proposals aim to strengthen Sect. 77 by providing for a right to obtain information not merely prevent the obtaining of it and to deepen and widen the pay gap provision by reducing the minimum size of business the obligation falls on and extending it to ethnicity as well. See e.g. Equal Pay Bill (HL Bill 65) (Session 2019–21), cl 1, cl 7.

Equality Act 2010, s 39(7)(b) expressly including constructive dismissal within the definition of dismissal (Sect. 39(2)(c) ‘includes a reference to the termination of B’s employment… by an act of B's (including giving notice) in circumstances such that B is entitled, because of A's conduct, to terminate the employment without notice’).

See e.g. Alexander v Home Office [1988] ICR 685.

Newcastle Upon Tyne v Allan & Ors [2005] ICR 1170, [7].

Johnson v Unisys [2001] ICR 480.

Dunnachie v Kingston upon Hull City Council [2004] ICR 1052, [16]-[22] (Lord Steyn), citing inter alia Norton Tool Co Ltd v Tewson [1972] IRLR 86, [15] (Lord Donaldson).

Watts v Morrow [1991] 1 WLR 1421, 1445 (Bingham LJ).

Newcastle Upon Tyne v Allan & Ors [2005] ICR 1170, [11].

Chief Constable of West Yorkshire v Vento (No.2) [2002] EWCA Civ 1871.

BMC Software Ltd v Ms A Shaikh [2017] UKEAT 0092_16_0908, [71].

If a claim is brought in the County Court rather than the under the jurisdiction of the Employment Tribunal, claimants have six years in England and Wales (five years in Scotland) to bring a claim but they would also face much greater court expenses and the costs regime; if a complaint is brought to an Employment Tribunal, equal pay complainants currently have six months as opposed to three months for discrimination (but the Law Commission ( 2020 ) has recommended raising discrimination and unfair dismissal claims to six months, too.

See e.g. St Helens & Knowsley Hospitals NHS Trust v Brownbill & Ors [2011] EWCA Civ 903.

See e.g. Presidential Guidance: Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879—Fifth Addendum to Presidential Guidance Originally Issued on 5 September 2017.

Cited in BMC Software Ltd v Ms A Shaikh [2017] UKEAT 0092_16_0908, [5].

BMC Software Ltd v Ms A Shaikh [2017] UKEAT 0092_16_0908, [5].

BMC Software Ltd v Ms A Shaikh [2017] UKEAT 0092_16_0908, [66]—[68], [77]—[79].

BMC Software Ltd v Ms A Shaikh [2017] UKEAT 0092_16_0908, [80].

Johnson v Unisys Ltd [2001] UKHL 13.

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, [121] (Lady Hale).

Eastwood and another v Magnox Electric plc and McCabe v Cornwall County Council and another [2004] UKHL 35, [27] (Lord Nicholls).

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58.

[2014] IRLR 354; Petersham Hotel Ltd v Castro [1996] UKEAT 635_96_151 also saw a constructive unfair dismissal and constructive discriminatory dismissal succeed where schedule and tronc payments were changed (but pre-dated the Johnson line of cases).

[2014] IRLR 354, [38].

[2014] IRLR 354, [40].

Lord Nicholls in Eastwood noting ‘In cases of constructive dismissal a distinction will have to be drawn between loss flowing from antecedent breaches of the trust and confidence term and loss flowing from the employee's acceptance of these breaches as a repudiation of the contract. The loss flowing from the impugned conduct taking place before actual or constructive dismissal lies outside the Johnson exclusion area, the loss flowing from the dismissal itself is within that area.’.

[2014] IRLR 354, [39].

Explanatory Notes to the Equal Pay Bill [HL] available at https://publications.parliament.uk/pa/bills/lbill/58-01/065/5801065en02.htm

Equal Pay Bill (HL Bill 65) (Session 2019–21), clause 5.

[2019] EWCA Civ 900, [111].

Furthermore, there are no articles on the section on Westlaw.

As of February 2023, and counting cases once (disregarding any appeals).

Capita ATL Pension Trustees Ltd v Zurkinskas [2010] EWHC 3365 (Ch) (by mentioning that the current equal pay rules ‘are contained in ss 64 to 71 Equality Act 2010’ at [21]).

Namely, R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2445; R (on the application of Buckley) v Sheffield City Council [2013] EWHC 512; R (on the application of Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438; R (on the application of Bapio Action Ltd) v Royal College of General Practitioners [2014] EWHC 1416; R (on the application of West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; R (on the application of T) v West Berkshire Council [2016] EWHC 1876; R (on the application of KE) v Bristol City Council [2018] EWHC 2103; Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445; and (not re s 71 RRA but still on the public sector equality duty) R (on the application of Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058.

Ali v Capita Customer Management Ltd; Chief Constable of Leicestershire v Hextall [2019] EWCA Civ 900, [112]—[113], the provision was only relevant in the Hextall appeal.

[2021] EWCA Civ 611.

City of London Police v Geldart [2021] EWCA Civ 611, [89].

City of London Police v Geldart [2021] EWCA Civ 611, [87].

City of London Police v Geldart [2021] EWCA Civ 611, [72].

City of London Police v Geldart [2021] EWCA Civ 611, [90].

Equality Act 2010, s.70(1).

Point 4 within para [89] of City of London Police v Geldart [2021] EWCA Civ 611.

Explanatory Notes to the Equality Act 2010, [245]-[246]; BMC Software Ltd v Ms A Shaikh [2017] UKEAT 0092_16_0908, [75]-[76]; City of London Police v Geldart [2021] EWCA Civ 611, [89].

Jessemey v Rowstock Ltd & Anor [2014] EWCA Civ 185, [45]; see also Middlemiss ( 2013 ) and Connolly ( 2018 ).

The provision in Rowstock being decidedly opaque as noted immediately above whereas Sect. 71 was described in Geldart as rather opaque (fn 82 above).

It is perhaps worth noting that the notes refer to ‘offers of employment’ which would fall within s 39(1) which is not excluded by s 70.

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Hand, J., Hooton, V. Equal Pay and the Equality Act 2010: An Accidental Paradox in Need of Change?. Liverpool Law Rev 45 , 105–123 (2024). https://doi.org/10.1007/s10991-023-09339-5

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An Act to make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; to enable certain employers to be required to publish information about the differences in pay between male and female employees; to prohibit victimisation in certain circumstances; to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct; to enable duties to be imposed in relation to the exercise of public procurement functions; to increase equality of opportunity; to amend the law relating to rights and responsibilities in family relationships; and for connected purposes.

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B e it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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C1 Act applied (30.9.2020) by The Channel Tunnel (Arrangements with the Kingdom of the Netherlands) Order 2020 (S.I. 2020/916) , arts. 1(2)(b) , 4(2)

C2 Act applied by S.I. 1993/1813 , art. 4(1C) (as amended (30.9.2020) by The Channel Tunnel (International Arrangements and Miscellaneous Provisions) (Amendment) Order 2020 (S.I. 2020/915) , arts. 1(2) , 3 )

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