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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 48202
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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In November 2010 the department I work in was restructured

Resolved Question:

In November 2010 the department I work in was restructured into a three tier system, whereby I was given the status of a level 2 employee (level 3 being the least senior and lowest paid and level 1 being the most senior and highest paid).

I recently discovered that since the restructure the other level 2 employees in my department have been paid £3000 a year more than myself. Initially, when I asked my line manager why this was he said that I should be on the higher rate of pay, in line with that which the other level 2 employees were receiving, and that a meeting with HR would be arranged to discuss further.

During the course of the meeting I was told that forms had been submitted to the relevant departments to sign off so that my salary would be brought into line with the other level 2 employees in my department. All good so far.

When I enquired as to why the pay rise hadn't been offered or even mentioned to myself during the meetings preceding the restructure I was told that, other than an oversight on their part, my high Bradford Factor score was one of the reasons (I was at the time suspended from the company sick pay scheme due to a high level of absenteeism due to work related stress, for which I have periodically received counselling to this day). I was also told that the pay rise was offered to me as an 'incentive' to encourage better attendance, which is simply not true. The pay scale for the new three tier structure was never discussed verbally or communicated to me in writing nor was it made explicity clear to me verbally or in writing that a pay rise incentive was on the table. Even when I was reintroduced into the company sick pay scheme last year I was not offered the increase in pay due to me.

I then went on to enquire about my entitlement to back pay, at which point I was told that the back pay issue wasn't something that they could discuss at that moment in time and that we would reconvene at an undetermined future date.

I'm not sure I can enforce the Equality Act as the only other level 2 employee at the time of the restructure was a man, although since the restructure a woman has joined the team on the higher rate of pay.

I'm also unsure if Unlawful Deduction of Wages applies or if I fall under one of the protected characteristics where discrimination is concerned (I'm a white, heterosexual, male with no disabilities or religious beliefs, unless my absenteeism due to work related stress constitutes a valid case?).

So, my questions are:

On what grounds and from what point in time can I claim the back pay that is owed to me?

Can my employer use a high Bradford Factor score as grounds to withold a pay rise that is being offered to other employees performing the same job with the same level of responsibility?

Am I being descriminated against in any way?
Submitted: 5 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 5 years ago.

Ben Jones :

Hello and thank you for your question, which I will be happy to assist you with. Please let me know if your pay has now been brought in line with the others?

Customer: Hi Ben, not yet. The forms have been submitted to the relevant people and are awaiting approval and sign off. It is not yet a done deal, although I haven't been given any reason to suspect that my increase in salary won't be approved. I was told that it would be at least two weeks before I hear anything due to at least one of the relevant parties being on holiday.. Phil.
Ben Jones :

You have identified the potential ways to claim correctly but most will not apply here.


 


For starters, the law on equal pay is frequently misunderstood. Many workers believe that there has to be some form of equality in pay across the workforce, especially for workers that perform the same or similar jobs.


 


However, the reality is that employers are free to pay their employees whatever they wish, so long as it is above the National Minimum Wage applicable at the time and it matches what they are due under their contract. It is not generally unlawful to pay employees doing the same or similar jobs different rates. The only time this would be a problem is if the reasons for the difference in pay is discriminatory in nature, most commonly due to a difference in gender.


 


Therefore, if you have evidence that the reason for the difference in pay is gender-related, you can rely on the law of equal pay and consider bringing in a claim. However, if the reason is not discriminatory then there would be no claim. Whilst the employer’s actions may impact on the employees’ morale and may seem unfair, they are not illegal.


 


Even if there was evidence that the reasons may be gender-related, the employer could try and rely on the genuine material factor defence to defend any equal pay claim. These can include:



  • Market forces and skills shortages

  • Red circling

  • Geographical differences

  • Different skills, qualifications and experience


 


So there is no discrimination from a legal point of view here. The best course of action may be to claim breach of contract - if you were promised a pay rise but that was not implemented then that could indeed amount to breach of contract. Whilst the option of making a claim in the county court exists, it may also be pursued as a constructive dismissal claim, where you are forced to resign due to the employer's unreasonable behaviour. The issue here is that this is a risky move as you will be out of a job and no guarantee of a successful claim.


 


Please let me know if you need any further help with your query. If you do not, I would be grateful if you could please press Accept before exiting, many thanks.


 

Customer:

Thanks for responding so promptly. I have a couple more queries if you don't mind.

Customer:

Thanks

Ben Jones :

yes please go ahead

Customer:

Apologies, just getting used to the functionality of the forum. Firstly, relating to the Equality Act, if a there is a discrepancy in the amount being paid to persons of opposite gender is that not in and of itself discriminatory? If not, what would constitute discriminatory in this instance? Can I enforce the Equality Act if a person of opposite gender joins the team on a higher salary after a restructure/change in pay scale has taken place and claim back pay from the point that they begin their employment? Secondly, as I wasn't made aware of any pay rise/changes to the pay scale in the first place I take it that my original contract would still be in place and therefore no breach of contract or unlawful deduction of wages has taken place even though my employer has accepted and admitted responsibility for my having been on the wrong salary since 2010? In short am I right in thinking that I will probably have to settle for an apology where the back pay is concerned if I cannot enforce the Equality Act?

Ben Jones :

For the Equality Act to apply on pay differences between genders, the actual reason for the difference has to be gender-related. There has to be a conscious act by the employer in treating both genders differently on grounds of their gender. Just because it happens that the employees are of opposite genders is not enough - that is just a circumstantial issue.


 


A breach of contract would occur if you were promised a pay rise that was not subsequently implemented. For example, this could be a verbal promise or it could be implemented in your written contract. But there has to be a promise/offer for this to be valid.


 

Customer:

One last thing, can you elaborate on the 'possibility existing of making a claim in the county court' please? What would this entail?

Ben Jones :

a breach of contract claim - you would be claiming that by promising a pay rise and not implementing it the employer has committed a breach of contract. Of course you have to show some form of legally binding agreement was in force for this to occur. You would then submit a claim form and seek compensation for damages that have resulted from this alleged breach - usually the arrears of the pay that you would have received

Ben Jones :

Does this help?

Customer: Yes, thanks.
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