The spotlight has recently been put on the issue of equal pay for ‘like work’ as a result of a Belfast law firm being ordered to pay more than £270,000 to a female solicitor who was being paid less than her comparable male colleagues.
In June 2015, Margaret Mercer made an equal pay claim against C&H Jefferson Solicitors (“C&H”) to the Industrial Tribunal in Belfast. Ms. Mercer (a Salaried Partner) argued that she was engaged in ‘like work’ with her male colleagues (Salaried Partners with Access to Profit Share) but was being paid less than them. She also argued that there was no ‘genuine material factor’ defence available – i.e. that it could not be said that any variation in pay between Ms. Mercer and her male colleagues was genuinely due to a ‘material factor’ which was not sex.
C&H argued that there were significant differences in the work performed by Ms. Mercer and her male comparators. C&H contended that Ms. Mercer’s work was “not as demanding” as her male comparators and that they undertook responsibilities and duties which were additional to their normal legal caseload which Ms. Mercer did not undertake. C&H also submitted that in the event that Ms. Mercer was found to be engaged in ‘like work’ compared to her male comparators, there were ‘genuine material factors’ which justified any pay differences.
By way of background, Ms. Mercer was promoted to Salaried Partner in December 2008, whereas one of her male comparators was promoted to Salaried Partner in 2000 and the other two male comparators were promoted to the same position in 2005. There was no suggestion that Ms. Mercer was not performing ‘like work’ or not being paid the same as her male comparators in December 2008. However, the issue of equal pay arose in June 2009 when her male comparators were promoted to Salaried Partners with Access to Profit Share.
The right to equal pay was introduced in Northern Ireland by the Equal Pay Act (Northern Ireland) 1970. Under this legislation, a woman is to be regarded as employed on ‘like work’ with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to the terms and conditions of employment. Accordingly, in comparing her work with her comparators, regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences.
The tribunal was satisfied that Ms. Mercer’s knowledge and skills were at the same level as her male comparators and that she was doing work which was of the same or a broadly similar nature to her comparators. C&H unsuccessfully argued that the following additional duties were undertaken by her male comparators: (i) control and development of their own client base / control of significant clients; (ii) directing / allocating the caseload of other solicitors; and (iii) business development, marketing and responsibilities for ISO quality standard compliance / involvement in and attitude to business development and marketing. C&H were also unsuccessful in putting forward a ‘genuine material factor’ defence (which it based largely around the additional duties listed above). C&H were therefore ordered to pay more than £270,000, including arrears for six years before the claim was made and interest.
This case highlights the risk that employers face in relation to equal pay claims. Employers should regularly undertake equal pay reviews to ensure that their pay system delivers equal pay for male and female employees carrying out ‘like work’, particularly when promotions are being made. In Ireland, such claims would be made by employees under the Employment Equality Act 1998 to 2015. With the Gender Pay Gap reporting legislation soon anticipated in Ireland, it is likely that we will see more claims like this with the information being more readily available.
The firm was ordered to pay her £116,542 due to the difference between her gross annual salary of £70,000 and the altered amount of £99,500 henceforth. Additionally, she will receive £137,000 of annual salary falling six years prior to the date of her claim in June 2015 with interest of £19,710 on arrears.