There are far too many (women) who are discriminated against and far too many employers who are using every single legal argument and loophole to dodge their obligations under equal pay law

Introduction The Equality incite 2010 (EqA)1 came into force on the 1st October 2010, replacing the earlier Equal Pay Act 19702, with the arrest of offering greater certainty. Despite this, thither is largely a reappearance of the equipment casualty of the 1970 Act and in that respect remain difficulties in enforcing the fundamental rule of pertain abide for equal work, which is set out in cla commit 157 of the Treaty on the Functioning of the European Union3 (TFEU). This has several elements which send a focussing potentially be argued by employers steping to discriminate once against women, two of which areas provide be looked at here, in commit to confirm or deny the line of reasoning made at the outset that employers are using the legal crinkle to dodge their obligations. For the purposes of arguing this point, two issues will be considered, in much than detail the pauperisation for a comparator and the temporal justification defence.Comparator The enkindle co mpare requirement prohibits pay variation based on sex and then a woman looking to bring a film of this disposition will need to be able to compare her contractual damage with a comparable or sufficiently similar male comparator. This feeling of a comparator is used across the whole area of diversity thus far-off it is treated somewhat more stringently in the contingency of equal pay. In accordance with the EqA, it is necessary for the comparator to be actual. Unlike other areas of discrimination where the comparator can be hypothetical, it is necessary for the woman in this situation to construe an actual comparator. It is alike necessary for the comparator to be in the same employment, i.e. occupied by the same employer or at least an associated employer. The comparator must also be a current or former employee, alone cannot be a replacement and the comparator is fundamentally the claimants choice. Bearing in judgment all of these requirements, it is possible to see that on that point are several options acquirable to the employer, when it comes to arguing the validity of a comparator.In the case of Macarthys in 1980, it was held that there needed to be an actual comparator with the judge stating Comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work rattling performed by employees of different sex within the same establishment or service4. It is noted that this is not the case with a direct pay discrimination claim, where a hypothetical comparator may be allowed for the purposes of evidencing sex discrimination and less(prenominal)(prenominal) pay for the same work.A similar difficulty emerges in the area of working in the same establishment. In the case of the urban center of Edinburgh Council, 20125, where the upcountry category of the Court overturned the previous decision of the take in that had previously argued that the terminology establishment could affirm a broad meaning. Inst ead, the Inner House restricted this substantially by saying that the comparator had to work at an establishment that was largely in the same geographical area. An employee looking to claim that they are being paid less will also need to find a comparator who is broadly employed on common terms (as stated in Section 1(6) of the 1970 Act and restated in EqA). For example, in the case of Leverton (1989)6, it was possible for female nursery nurses to argue that they were being paid less than their comparators who were male clerical staff. All staff had a purple mass of terms and conditions and this was sufficient to argue that they had common terms.Finally, there is the time mould over which the comparator has worked, with the ability of the claimant to look at a predecessor alone not a successor. This was supported by the case of Walton, 20087, where it was held that a successor could not be used, as this would require the courts to hypothesise as to whether the comparator would ha ve been treated differently, had they been employed at the same time. This is based on the credit line that by looking into the future this would be hypothetical situation and unsufferable to consider how the employer would act in the future. It can therefore be seen that there are multiple issues involved in locating a comparator, which can potentially make it easier for an employer to escape their obligations and to allow them to look at ship canal of paying female employees less, either directly or indirectly, or at the very least making the discipline difficult for an employee to install, in the absence seizure of an obvious and exact comparator.Material JustificationAnother area which presents a real opportunity for the employer to look at escaping indebtedness is the use of the sensible means defence contained in both the EqA and the 1970 Act. This defence allows an employer to pay an employee less than a comparator for whom they would otherwise be required to ensure equ al pay, collectible to some non- loaded reason. There is non- specific requirement to deal with the notion of material defence, after the issue of equal pay has been discussed and it may be that the courtyard will in fact consider the material justification defence, at the outset, when looking at whether the jobs were of equal value8.The material factor defence is dealt with in Section 1(3) of the 1970 Act, where it is stated that the employer would have a defence, if they could usher that the difference in salary is genuinely due to a material factor which is not the difference of sex. This is a genuine requirement and allows for employers to have a distinction amongst pay where it is required for the business need.An employer can show that they have a material factor defence where they can prove the following. Firstly that the explanation is genuine, secondly that the reason for less favourable sermon was down to that explanation, thirdly that the reason was not considered to be the difference of sex and finally that the reason is a significant and relevant difference between the man and woman in the instance9. When looking at the genuineness of the situation, the House of Lords stated in Bury Metropolitan Council that tribunals should not become in addition concerned over the issue of genuineness and should instead simply look at the facts surrounding the situation10. In this case, it was also stated that the difference will only be a sham, if it has been deliberately fabricated in order to present things otherwise than as they are.Crucially, it is also necessary for the factor to be material meaning, in accordance with Rainey, 1987, where the difference is significant and relevant, but this could be with reference to external factors, such as the market and not necessarily simply down to the skills and knowledge of the individuals in question11. When it comes to material justification, the pith of proof shifts from party to party in such a way that offers a real opportunity for the employer to escape liability. Once the employee has shown that there is a prima facie case for an equal pay claim, the employer then has the burden of viewing a material factor defence, before the burden then locomotion back to the employee to show that this was not genuine or in illusion in some way.For example, it may be argued, as was the case in Cooksey and Others (2011)12, that the use of an on call allowance had the impact of men get paid more than women, due to men being typically more available to undertake such work this was sufficient to constitute a material factor defence and the case was allowed, with the employer being culpable.ConclusionIt is cogitate here that the original statement made that employers have been able to use legal argument and loopholes as a key way of escaping liability under the equal pay legislation is not merely a theoretical argument, but one that is supported and shown time and time again through the tribun als and court system. It is argued here that by just looking at the area of identifying a comparator and the area of a material factor defence, there is a multitude of complexities that can be used by the employer to put over liability. This area needs to be revisited carefully, if there is to be sufficient testimonial offered to women, in the future. As it stands, all but the most obvious of discriminatory scenarios are likely to evade the full extent of the legislation and this matter requires review, as a matter of urgency. Practicality is such that there are a variety of factors which may lead to a discrepancy of pay heretofore this needs to be addressed to ensure that any differences are materially justifiable and are appropriate in all circumstances so as to reduce the overall pay gap as far as possible.BibliographyBury Metropolitan Borough Council v Hamilton and other cases 2011 IRLR 358City of Edinburgh Council v Wilkinson and others 2012 IRLR 202,Cooksey and Others v Traf ford Borough Council and others UKEAT/0255/11Equality Act 2010Equal Pay Act 1970Forex Neptune (Overseas) Ltd v Miller 1987 ICR 170,Glasgow City Council v Marshall 2000 ICR 196 (HL)Treaty on the Functioning of the European UnionLeverton v Clwyd County Council 1989 IRLR 28 (HL).Macarthys Ltd v metalworker 1980 IRLR 210Prentis D, Unison. 2013. commenting on North and ors v Dumfries and Galloway Council 2013 SC 45Rainey v greater Glasgow Health Board 1987 ICR 129Walton Centre for Neurology & Neuro Surgery NHS Trust v Bewley 2008 IRLR 588