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3.4.4.1 Factors for assessing work of equal value

It is apposite to note from the case law above that the Tribunals and Courts make regular use of section 131(2) of the EA which allows them to request an independent expert’s report on the value of the work in question. This is normal practice as was stated in Hosvell v Ashford & St Peter’s Hospital NHS Trust.96 Section 131(2) of the EA provides that:

“[w]here a question arises in the proceedings as to whether one person’s work is of equal value to another’s, the tribunal may, before determining the question, require a member of the panel of independent experts to prepare a report on the question.”

The case law does not discuss the factors for assessing the value of the work in detail, but it is clear that the factors emerging from the EA is used as well as objective factors which are used in terms of a job evaluation study and an independent expert’s report. It is apposite to list the crucial aspects relating to equal value from the above case law. The list is as follows:

a) A job evaluation study has to assess the employees work in terms of the factors used in the study;

b) The principle of equal pay for work of equal value applies to a situation where a claimant is engaged in work that is of higher value to that of the chosen comparator provided the claimant is paid less;

c) Hours worked and number of annual leave days;

d) A Court or Tribunal must assess the value of the work as it existed at the time when the equal pay proceedings were initiated;

e) A claimant is entitled to bring an equal pay claim under either or all of the following causes of action; equal pay for like work, equal pay for work rated as equivalent and equal pay for work of equal value;

f) Where a claimant alleges material changes in her job and that of the comparator and the claim involves different periods, such changes should be dealt with separately by splitting the issues (causes of action);

96

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g) A Tribunal has the ultimate say as to whether or not an expert should be appointed and a report sought on the value of the work in question.97

3.4.4.2 Grounds of justification

It is clear from the above analysis of the case law that the following are regarded as defences to an equal pay claim:

a) Comparator was employed on a higher salary scale due to skill and experience;98

b) Productivity which is rewarded in terms of a bonus system;99 c) Collective bargaining;100

d) Financial constraints;101 e) Red-circling;102

f) Administrative efficiency;103 g) Economic grounds (reasons);104 h) Service-pay criterion;105 and

i) Factors used for assessing the value of work in an equal value claim.106

3.5 Conclusion

It is clear that international law plays an important role in the interpretation to be accorded to the EEA as the EEA requires the Act to be interpreted in accordance with international labour law. It is apposite to note that international law recognises the principle of equal remuneration for equal work and work of equal value as a human right. This places the principle of equal remuneration at the apex with other rights which have been accorded human right status. International law explains that the value of the work in an equal remuneration claim should be determined on the basis of certain objective criteria. It also sets out a list of matters which should be considered when drafting equal remuneration provisions. International law

97

Para 3.4.3.1.

98

Secretary of State v Bowling at para 3.4.3.2.

99

Council of the City of Sunderland v Brennan at para 3.4.3.2.

100

Redcar & Cleveland Borough Council v Bainbridge (No. 2) at para 3.4.3.2.

101

Benveniste v University of Southampton at para 3.4.3.2.

102

Fearnon v Smurfit Corrugated Cases Lurgan (Limited) at para 3.4.3.2.

103

Rainey v Greater Glasgow Health Board at para 3.4.3.2.

104

Bilka-Kaufhaus GmbH v Weber von Hartz at para 3.4.3.2.

105

Wilson v Health & Safety Executive at para 3.4.3.2.

106

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recognises that the courts have a vital role to play in shaping the jurisprudence relating to equal remuneration claims, in particular their decisions can lead to a better understanding of the principles relating to equal remuneration. It also provides some guidance with regard to the grounds of justification to an equal remuneration claim.

It is clear that the United Kingdom has a more than adequate legislative framework in the form of the EA which is able to give effect to the principle of equal pay for equal work and work of equal value. Firstly, the EA sets out the following three causes of action: a) equal pay for like work; b) equal pay for work rated as equivalent; c) equal pay for work of equal value. A fourth cause of action should be added in the form of the sex equality clause which allows a woman’s contract to be brought into line with her male counterparts contracts where there is/are provision/s in the male’s contract that is/are not contained in the female’s contract or not contained in the same beneficial manner. The female’s contract should then be modified to include such a term. It is apposite to note that where the Tribunals/Courts are faced with an equal remuneration claim for work of equal value, it is usual practice to request an independent expert to submit a report on the value of the work in question. The EA sets out the factors for assessing the value of the work and the grounds of justification to an equal remuneration claim. The analysis of the case law clearly shows that the Tribunals/Courts have given meaning to the statutory provisions relating to the principle of equal remuneration. The result is a rich jurisprudence relating to equal remuneration claims. It is then apposite to derive lessons from international law and the United Kingdom law for the South African law relating to equal remuneration claims in chapter 4.

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