Gender Pay Gap Reporting

Hello and welcome back to your weekly dose of case law. Last week we looked at drug testing at work and unfair dismissal, a worthwhile read for any employers who use drug testing. This week we will be looking at sex discrimination and equal pay, an issue that is quite topical following the BBC Gender Pay Figures.

BMC Software Ltd v Shaikh

Today’s question:

Are equal pay and discrimination claims mutually exclusive?

Ms Shaikh, the Claimant, was employed in the sales department of BMC Software Ltd, the Respondent, a seller of IT parts. She resigned after her grievance against the Respondent in relation to an Equal Pay was rejected. She brought a claim for sex discrimination and equal pay and the ET allowed the claim.

The Respondent appealed the decision and the EAT allowed the appeal. It held that claims for equal pay and sex discrimination were mutually exclusive and a prospective Claimant could not bring a claim for both in relation to the same breach.

The takeaway point:

Yes, in this case the two are mutually exclusive. If the discrimination and equal pay claim arise out of the same issue – paying men and women differently for like work – then the employee cannot bring two claims.

Whilst a failure to pay men and women equally for like work could easily be viewed as sex discrimination the equal pay element must be a single and separate claim. If there was an equal pay issue as well as another discrimination issue – harassment/victimisation etc. – then it is possible that the two separate claims could succeed as they are in relation to separate breaches.