Sex discrimination in relation to contractual pay
Part 5 Work
(1)This section applies in relation to a term of a person's work—
(a)that relates to pay, but
(b)in relation to which a sex equality clause or rule has no effect.
(2)The relevant sex discrimination provision (as defined by section 70) has no effect in relation to the term except in so far as treatment of the person amounts to a contravention of the provision by virtue of section 13 or 14.
“sex equality clause” has the meaning given in section 66;
Defined in s.212(1) · see it in the full ActSection 71(1) identifies a term of work relating to pay where a sex equality clause has no effect. The court held that the claimant’s complaint was not such a claim about the content of her pay term. (see paras [87]-[90]) Section 71(2) excludes the relevant discrimination provision in defined pay-term cases except for direct discrimination. The court held that it did not exclude this indirect discrimination claim, which alleged denial of an existing entitlement. (see paras [87]-[90])
Section 71 preserves limited direct-discrimination claims concerning contractual pay where the sex equality clause has no effect. The Court held that it did not assist because the direct claim had been dismissed and the comparator was invalid. (see paras [111]-[113])
Confirms the predecessor equality duty considered in Baker and explains why its substance-over-form approach remains relevant to section 149. (see para [36])
What each judgment says about section 71 is in the case-law panel in the full Act.
245.This section deals with sex discrimination in relation to contractual pay in circumstances where a sex equality clause would not operate. This could be because there is no comparator doing equal work with whom a claimant can compare his or her pay or other terms. The section ensures that indirect sex discrimination in respect of contractual pay can be challenged only by means of an equality clause. However, the section for the first time enables a person who is treated less favourably than others by being paid less because of the person’s sex or a combination of two protected characteristics including sex to pursue a claim for direct or dual discrimination where an equality clause does not operate.
246.The section replaces similar provision in the Sex Discrimination Act 1975 which ensured that the sole remedy in respect of claims made about sex discrimination in contractual pay matters was obtained through the Equal Pay Act 1970. This required that the comparator be a real person. This section however contains a new provision designed to allow claims to be brought where a person can show evidence of direct sex discrimination or dual discrimination (where sex is one of the protected characteristics in the combination) in relation to contractual pay but is unable to gain the benefit of a sex equality clause due to the absence of a comparator doing equal work.