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Equal Pay – thorny issue of comparators – Did you know….

20 May 2020

The principle behind equal pay is that men and women should receive equal pay (and other contractual terms) for equal work.  Under the Equality Act 2010, an employee can seek contractual terms equal to those of a comparator of the opposite sex who is employed in the same employment and performing "like work", "work rated as equivalent" or "work of equal value", unless the employer can show that the difference is attributable to a material factor that is not sex discriminatory.

Whilst it is well established that the comparator must be in the same employment at the same time the individual claims equal pay…the comparator can also be a former employee.

It is established in case law that a comparator employed in the past, such as the claimant's predecessor, could be used. On the other hand, a comparator taken on after the claimant left, such as her successor, could not.

Section 64(2) of the Equality Act 2010 now states that, for the purposes of a claim by A, the work done by B (the comparator) is "not restricted to work done contemporaneously with the work done by A". Accordingly, EU law allows a woman to compare herself with "a man who was employed prior to the woman's period of employment and who did equal work for the employer".

In the case of Coloroll Pension Trustees Limited v Russell [1994] IRLR 586 the ECJ held that EU law requires a comparison with a worker or workers of the opposite sex, "now or in the past... who perform or performed comparable work".

It is clear, therefore, that predecessor comparators are allowed. This is illustrated by Kells v Pilkington plc [2002] IRLR 693, in which the Employment Appeal Tribunal held that a claimant could rely on a comparator who worked for her employer, on a higher pay grade, more than six years before she did.

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