Employment Appeal Tribunal has held that male employees can pursue an equal pay claim compared to a woman

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Employment Tribunal approves male ‘piggyback’ equal pay claims

<< News archive June 2009

26th June 2009

In an important decision (McAvoy and others v South Tyneside Borough Council and others) the Employment Appeal Tribunal has held that male employees can pursue an equal pay claim compared to a woman engaged in equivalent work of equal value.

So called ‘piggyback’ claims arise where there are some male employees in a group of predominantly females who themselves succeeded in an equal pay claim after comparison with a male who is paid more, the men "piggy back" on the successful women's claims.

A group of women in predominantly female jobs brought equal pay claims against Hartlepool, Middlesbrough and South Tyneside councils relating to bonus schemes paid to men in predominantly male jobs. They succeeded in their claims and were paid arrears. Men working with these female claimants brought contingent equal pay claims. They argued that they should be entitled to equivalent payments using the successful women as comparators. An employment tribunal upheld their claims, but said that the amount to which they are entitled should go back no further than the date of the presentation of the comparators' claims. The councils appealed against the decision to allow the male workers to bring claims by reference to their female colleagues. The male workers cross-appealed against the ruling limiting their entitlement to payment of arrears.

As an illustration, a male M1 and female F1 do the same jobs on £9 an hour and F1 is successful in claiming that she does work of equivalent value to male M2 so that her pay is adjusted (and backdated) to £11 an hour, the same as M2's pay. Male M1 can then successfully claim £11 an hour using female B as the comparator and M1 can have his pay backdated as well. The EAT held that these facts clearly triggered the operation of the equality clause.

In the appeal the EAT also held that such a claim may be brought even before the woman's equal pay claim has been decided but is contingent on the female’s claim being successful and that the man in such circumstances has the same right as the woman to payment of arrears. However, a man cannot "just" compare himself to another man or argue that he is comparing himself to a female colleague whose pay would be increased where she has not brought a claim.

Mr Justice Underhill said: "It would be surprising and unsatisfactory if the [Equal Pay] Act offered no remedy to men in a situation like the present."

Even so, it seems bizarre that equal pay legislation be used to ensure a male can have pay equal to another male. Those who are involved in settling potential equal pay claims should be aware that the EAT also accept that where equal pay claims brought by women are settled, it will be sex discrimination against the male “piggybackers” if they are also not offered the same settlement terms.

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