“Applying the ‘same subject matter’ test we decided that the terms relating to the basic pay and to the bonus payments in the relevant comparators’ contracts related to the same subject matter, but not the terms of the attendance allowance. Our reasons for that conclusion were as follows: …… (b) the basis of calculation of the attendance allowance was different. The basic pay and the bonus are based on the proposition that the comparator works throughout the shift and until the end of the shift. Both are calculated on the number of hours of work attended. The attendance allowance is different. It only requires the worker to turn up for work, but not to attend throughout the shift. It was thus not calculated on an hourly rate. If a comparator failed to turn up, but gave an explanation in accordance with the respondent’s rules, e.g. in time and in accordance with the sickness rules, he would lose his attendance allowance but only for that day or for as long as he remained on the sick. If his absence was, however, unauthorised, he would lose his attendance allowance for the whole of the week. The fact that the comparator’s holiday pay, for four or more weeks of the year, incorporated an attendance allowance element on the fiction that the comparator attended work during his holidays was not sufficient to displace the contention that the attendance allowance was not based upon the comparator’s hourly rate of pay. It was based entirely upon the proposition that the comparator attended work daily but not throughout his shift.” …… (b) the basis of calculation of the attendance allowance was different. The basic pay and the bonus are based on the proposition that the comparator works throughout the shift and until the end of the shift. Both are calculated on the number of hours of work attended. The attendance allowance is different. It only requires the worker to turn up for work, but not to attend throughout the shift. It was thus not calculated on an hourly rate. If a comparator failed to turn up, but gave an explanation in accordance with the respondent’s rules, e.g. in time and in accordance with the sickness rules, he would lose his attendance allowance but only for that day or for as long as he remained on the sick. If his absence was, however, unauthorised, he would lose his attendance allowance for the whole of the week. The fact that the comparator’s holiday pay, for four or more weeks of the year, incorporated an attendance allowance element on the fiction that the comparator attended work during his holidays was not sufficient to displace the contention that the attendance allowance was not based upon the comparator’s hourly rate of pay. It was based entirely upon the proposition that the comparator attended work daily but not throughout his shift.”
“(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one. (2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (“the woman’s contract”), and has the effect that – ……… (b) where the woman is employed on work rated as equivalent with that of a man in the same employment- (i) if (apart from the equality clause) any term of the woman’s contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman’s contract shall be treated as including such a term.” ……… (b) where the woman is employed on work rated as equivalent with that of a man in the same employment- (i) if (apart from the equality clause) any term of the woman’s contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman’s contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the woman’s contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the woman’s contract shall be treated as including such a term.”
“If a contract contains provisions relating to (1) basic pay, (2) benefits in kind such as the use of a car, (3) cash bonuses, and (4) sickness benefits, it would never occur to me to lump all these together as one ‘term’ of the contract, simply because they can all together be considered as providing for the total ‘remuneration’ for the services to be performed under the contract. In truth, these would include a number of different terms; and in my opinion it does unacceptable violence to the words of the statute to construe the word ‘term’ in sub paragraph (ii) as embracing collectively all these different terms…..I do not consider that the words ‘a term of a similar kind’ are capable of constituting a basis for building the construction of the word ‘term’ favoured by the Court of Appeal. Again, in my opinion, the words mean precisely what they say. You look at the two contracts, you ask yourself the common sense question – is there in each contract a term of a similar kind, i.e. a term making a comparable provision for the same subject matter; if there is, then you compare the two, and if, on that comparison, the terms of the woman’s contract proves to be less favourable than the term of the man’s contract, then the term in the woman’s contract is to be treated as modified so as to make it not less favourable. I am, of course, much fortified in this approach in that appears to me to be consistent with the only construction of sub-paragraph (ii), concerned with the case of the absent term, which I find to be acceptable. But, in addition, I feel that the Court of Appeal’s attempt to introduce the element of overall comparison placed them firmly or rather infirmly, upon a slippery slope; because, once they departed from the natural and ordinary meaning of the word ‘term’, they in reality found it impossible to control the ambit of the comparison which they considered to be required. For almost any, indeed perhaps any, benefit will fall within ‘pay’ in the very wide sense favoured by them, in which event it is difficult to segregate any sensible meaning of the word ‘term’.”
“Our view is that it does relate to the same subject-matter as basic hourly pay and the bonus and is an element of a distinct part of the contract and not itself a distinct part. It is part of the monetary payment for performance of the contract, by attending at work and working during normal working hours. The fact that it can on occasion be paid to a man who leaves soon after he attends work does not make it any less so, nor does the fact that it is not paid for a day on which the employee is absent from work with authority, because attendance at work and performance of such work is the obligation in respect of which it, like the basic hourly pay and the bonus, is paid; nor does the fact that the employee loses the attendance allowance for the whole of the week, if his absence on one day is unauthorised. It simply affects the amount of monetary pay receivable in the affected week, and in theory, though not surely in practice, means that the value of the attendance allowance to male employees may be fractionally less for the purpose of comparison than the full weekly rate.”
“It follows that genuine transparency, permitting an effective review, is assured only if the principle of equal pay applies to each of the elements of remuneration granted to man or woman.”
“All monetary payments received by male comparators for normal working hours should be aggregated and divided by the number of hours in the working week, to give an hourly rate; if it is greater, the woman’s hourly rate should be increased to eliminate the difference.”