Introduction

The case of McAvoy & Ors v. Llewellyn & Ors ([2009] ICR 1426) adjudicated by the United Kingdom Employment Appeal Tribunal on June 24, 2009, addresses a long-standing challenge in employment law: the admissibility of "piggyback" claims by male employees in the context of successful equal pay claims by their female counterparts. This case emerged from multiple equal pay "multiples" proceedings involving South Tyneside Borough Council, Hartlepool Borough Council, and Middlesbrough Borough Council. Primarily, the litigation questioned whether male employees could validly use the success of female claimants to support their own claims for equal pay.

Summary of the Judgment

The Employment Judge Hargrove granted that male contingent claimants were entitled to an equality clause with their female comparators from the date of the female comparators' successful claims. However, the claimants were not entitled to arrears of pay accruing before the presentation of their female counterparts' claims. The Councils appealed this decision, seeking to prevent male employees from leveraging the successes of female claimants. The Appeals Tribunal ultimately upheld the Employment Judge's decision, allowing male contingent claimants to claim arrears of pay equivalent to those awarded to female comparators from the date of the comparators' claims.

Analysis

Precedents Cited

The judgment references several key cases that have shaped equal pay jurisprudence. Notably:

• Glasgow City Council v. Marshall ([2000] ICR 196): Discussed the presumption that equality clauses operate unless a genuine material factor unrelated to sex explains pay differentials.
• Strathclyde Regional Council v. Wallace ([1998] ICR 205): Emphasized that unequal pay must be characterized as sex discrimination to engage the Act.
• James v. Eastleigh Borough Council ([1990] ICR 554): Explored the grounds of sex discrimination and the application of gender-based criteria.
• Igen Ltd. v. Wong ([2005] IRLR 258): Highlighted the tribunal's burden of proof in discrimination cases.
• Sodexo Ltd. v. Gutridge ([2009] ICR 70): Clarified that once equality clause conditions are met, they "bite," affecting the employment relationship beyond mere contractual terms.

These precedents collectively influence the court’s approach to "piggyback" claims, reinforcing the principle that equal pay legislation should be interpreted in harmony with broader UK and EU discrimination law.

Legal Reasoning

The core legal issue revolves around whether male employees can successfully claim equal pay by referencing the successes of their female colleagues. The judgment meticulously deconstructs section 1 of the Equal Pay Act 1970, particularly focusing on the "equality clause," which mandates that women's pay terms be treated as equal to those of comparable male employees unless a material, non-sex-related factor justifies any disparity.

The Tribunal concluded that:

• Male claimants are entitled to equal pay terms from the date their female comparators' claims are successfully presented.
• The entitlement to arrears cannot retroactively extend before the date of the female comparators' claims.

This reasoning ensures that male employees are not perpetually disadvantaged by awaiting the success of their female counterparts' claims, thereby reinforcing the Act's intent to eliminate systemic pay discrimination based on sex.

Impact

The judgment has significant implications for future equal pay litigation:

• Recognition of Male Contingent Claims: Establishes that male employees can validly bring contingent claims based on the successes of female employees, thereby broadening the scope of equal pay protections.
• Procedural Clarity: Clarifies the timeline for claiming arrears, preventing employers from exploiting delays in female claims to justify ongoing male pay disparities.
• Alignment with EU Law: Ensures UK law remains in congruence with EU directives on equal pay, promoting consistency in anti-discrimination standards.

Moreover, the decision discourages employers from selectively settling claims to the detriment of one gender, promoting equitable treatment across the workforce.

Complex Concepts Simplified

Equality Clause

An equality clause is a statutory provision deemed to exist in every employment contract under the Equal Pay Act 1970. It ensures that if a woman is employed on like work as a man, her terms of employment cannot be less favorable. If discrepancies arise, the equality clause mandates that her contract be treated as though the terms were equal to those of the comparable male employee.

Piggyback Claims

Piggyback claims refer to situations where an individual (typically of a different gender) leverages the successful equal pay claims of others to support their own claims. For example, a male employee may use the success of a female colleague's equal pay claim to substantiate his own claim for equal remuneration.

Material Factor

A material factor is a legitimate, non-discriminatory reason that an employer could offer to justify pay disparities. Under the Equal Pay Act, employers must prove that any pay difference is due to such a factor unrelated to sex to defend against claims of discrimination.

Conclusion

The McAvoy & Ors v. Llewellyn & Ors judgment marks a pivotal moment in equal pay litigation by affirming the validity of male contingent claims based on female claimants' successes. By doing so, it reinforces the robustness of the Equal Pay Act 1970 and aligns domestic law with broader EU principles against sex-based pay discrimination. The ruling ensures that all employees, irrespective of gender, have the opportunity to secure fair remuneration, thus advancing the cause of workplace equality.

Employers are now clearly obligated to treat all employees equally in settlement offers related to equal pay claims, eliminating arbitrary distinctions based on gender. This judgment not only rectifies a procedural gap in equal pay litigation but also fortifies the legal framework against entrenched gender pay disparities.