“Briefly stated, the Tribunal found that the respondent’s methodology employed two separate factor plans in evaluating the work of the material employees. The application of each factor plan involved the analysis of work under relevant headings with each level under each factor under each factor plan being awarded a score. Each pay grade was defined in terms of a range of point scores as was each level of the WCD payment. The respondent’s methodology expressed the value of each job in terms of x grade points and y WCD points which, by identifying the particular grade and WCD points ranges within which those points fell, translated into grade n and WCD level z.”
“On the facts found, the payment of unjustified bonus was the reason why some employees received transitional payment. The majority-at least two to one- fell into protection for some reason other than the payment of bonus and the ground has not been laid for a finding that the reason for others falling into protection was tainted by sex.”
“There is nothing to suggest that the respondent’s thinking in 2006 went beyond offering pay protection to the pre WPBR earnings of those who would otherwise have suffered an immediate loss of income. The respondent did not consider for a moment offering anything by way of pay protection to those employees who would not suffer an immediate drop in earnings…”
“Recognising that the respondent continued the discriminatory effect of the former bonus payments by the using of the transitional payment. The Tribunal concluded that the respondent’s action to meet their legitimate objectives pass the test of proportionality for these reasons.”
“ 1- (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— (a) where the woman is employed on like work with a man in the same employment— (i) if (apart from the equality clause) any term of the woman’s contract 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, 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. (c) where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment— (i) if (apart from the equality clause) any term of the woman’s contract 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, the woman’s contract shall be treated as including such a term. (3) An equality clause falling within subsection (2)(a), (b) or (c) above shall not operate in relation to a variation between the woman’s contract and the man’s contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex and that factor— (a) in the case of an equality clause falling within subsection (2)(a) or (b) above, must be a material difference between the woman’s case and the man’s; and (b) in the case of an equality clause falling within subsection (2)(c) above, may be such a material difference. (4) A woman is to be regarded as employed on like work with men if, but only if, her work and theirs is of the same or a broadly similar nature, and the differences (if any) between the things she does and the things they do are not of practical importance in relation to terms and conditions of employment; and accordingly in comparing her work with theirs regard shall be had to the frequency or otherwise with which any such differences occur in practice as well as to the nature and extent of the differences. (5) A woman is to be regarded as employed on work rated as equivalent with that of any men if, but only if, her job and their job have been given an equal value, in terms of the demand made on a worker under various headings (for instance effort, skill, decision), on a study undertaken with a view to evaluating in those terms the jobs to be done by all or any of the employees in an undertaking or group of undertakings, or would have been given an equal value but for the evaluation being made on a system setting different values for men and women on the same demand under any heading. 2. — Disputes as to, and enforcement of, requirement and equal treatment. (1) Any claim in respect of the contravention of a term modified or included by virtue of an equality clause, including a claim for arrears of remuneration or damages in respect of the contravention, may be presented by way of a complaint to an employment tribunal. ... 2A.— Procedure before tribunal in certain cases. (1) Where on a complaint or reference made to an employment tribunal under section 2 above, a dispute arises as to whether any work is of equal value as mentioned in section 1(2)(c) above the tribunal may either— (a) proceed to determine that question; or (b) require a member of the panel of independent experts to prepare a report with respect to that question; (2) Subsection (2A) below applies in a case where— (a) a tribunal is required to determine whether any work is of equal value as mentioned in section 1(2)(c) above, and (b) the work of the woman and that of the man in question has been given different values on a study such as is mentioned in section 1(5) above. (2A) The tribunal shall determine that the work of the woman and that of the man are not of equal value unless the tribunal has reasonable grounds for suspecting that the evaluation contained in the study — (a) was (within the meaning of subsection (3) below) made on a system which discriminates on grounds of sex, or (b) is otherwise unsuitable to be relied upon. (3) An evaluation contained in a study such as is mentioned in section 1(5) above is made on a system which discriminates on grounds of sex where a difference, or coincidence, between values set by that system on different demands under the same or different headings is not justifiable irrespective of the sex of the person on whom those demands are made.”
“that the closing submissions were almost totally devoid of any suggestion that any score awarded to a claimant or comparator was not justified by reference to the demands of the work on the employee.”
“Article 17 Defence of Rights 1. Member States shall ensure that, after possible recourse to other competent authorities including where they deem it appropriate conciliation procedures, judicial procedure for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the alleged discrimination is said to have occurred has ended. 2. Member states shall ensure that associations organisations or other legal entitles which have, in accordance with criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his/her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive. 3. Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equal treatment.”
“377. In the tribunal’s judgment, the answer to the question lies within the technical expertise of an expert on job evaluation. None of the parties have called an independent expert who could provide the tribunal with an opinion as to the legitimacy of using this technique. The absence of expert opinion evidence to assist the tribunal and to provide a proper foundation for submissions by counsel was a frequently recurring issue in that the Tribunal’s deliberations as, indeed, it had been in questions from the bench during the course of the hearing.”
“378. The tribunal takes this opportunity to set out its position in relation to expert evidence. As will be apparent from these reasons, the Fox claimants and the Thompsons claimants mounted an attack on the respondent’s methodology that was, at least in part, a rather technical attack on the design and application of that methodology. The Tribunal has been shown first instance decisions made by Employment Tribunals in England considering the validity of differently designed methodologies and written guidance offered by the EHRC and the English local government National Joint Council and the Greater London Provincial Council. None of these sources have considered the methodology employed by the respondent. Counsel’s submissions do not amount to evidence. The members of the tribunal have an acquaintance with the principles of job evaluation but none of the members would hold themselves out as experts in that field. The Tribunal can no more be expected to rely on its own knowledge to reach conclusions about technical matters within the professional competence of those qualified, trained or experienced in the practice of job evaluation than would a court dealing with the nature, extent and consequences of a personal injury be expected to have sufficient knowledge of medical matters without the evidence of experts.”
“claimants are not required to show on the balance of probabilities that the evaluation is unsuitable to be relied upon; showing reasonable grounds to suspect is enough.”
“In considering the ….evaluations generally, the Tribunal has had to wrestle with different standards and burdens of proof. The claimant seeking to rely on an equivalent rating pursuant to section 1 (2) (b) EQP must prove on the balance of probabilities that the work of the claimant and that of the comparator must have been given an equal an equivalent rating under the study of a kind contemplated by section 1 (5) EQ P. A respondent seeking to rely on an equivalent rating to defeat an equal value claim made pursuant to section 1 (2) (c) bears the burden of proving, on the balance of probabilities, that the job of claimant and comparator have been rated as equivalent under a study of a kind contemplated by section 1 (5) EQ P. Even if the respondent proves that fact, the claimant will not be prevented from pursuing an equal value claim in respect of a comparator given a different rating if the claimant discharges the burden of showing reasonable grounds to suspect either discrimination (as defined in section 2 A (3) EQ P ) or unsuitability.”
“At the heart of the WPBR lies what the respondent contends is a valid job evaluation. In very broad terms, there were issues as to which parts of the respondent’s WPBR payment system were determined by job evaluation; whether the evaluation was of a kind that satisfied the test in section 1 (5) of EQP; whether that evaluation could be relied upon as between claimants and comparators; and whether there were reasonable grounds to suspect that the process failed one or both of the tests in section 2A (2A) EQP.”
“The tribunal’s approach was to make findings in fact as to the elements in the WPBR pay package and the way in which those elements came to be determined. In doing so, the tribunal made findings in fact as to the design of what was said to amount to the job evaluation methodology and to the way in which that methodology was applied. The tribunal had before it the criticisms of the methodology and the way in which it was applied and, in making its findings in fact, the tribunal had regards to the facts it could properly find material to those criticisms.”
“To satisfy section 1 (5) a study must satisfy the test of being thorough in analysis and capable of impartial application. It should be possible by applying the study to arrive at the position of a particular employee at a particular point in a particular salary grade without taking other matters into account, except those unconnected with the nature of the work (see Eaton Ltd v Nuttall ).”
“The issue that the court was considering was whether the claimants’ jobs and the comparators’ jobs have been evaluated in a study which satisfied the requirements of section 1 (5). The question that it was necessary for the court to ask in order to determine that issue is whether the comparators’ jobs had been rated in a single such study. The answer, on the facts, is that none of them had. In the tribunal’s judgment, the ratio of Bromley is that a job evaluation study cannot be relied upon for the purposes of section 1 (5) or section 2 A (2A) EQ P if the job of the comparator has not been rated on a study that evaluates their jobs in terms of the demand made on a worker under various headings (for instance effort, skill, decision.)”
“In practice, where there has been a job evaluation study and there is evidence from the employer as to how that study was carried out, the claimant might to (sic) point to particular matters as indicating, or possibly indicating, that the system involved direct or indirect sex discrimination. Natural justice will then require that the employer be given an opportunity of explaining these matters. In some cases it may be easy for an employer to show that some point taken is based on a misunderstanding of what happened or of how some figures were worked out. In other cases the point taken in may be more difficult or impossible for the employer to surmount. It will be for the Employment Tribunal to decide, at the end of the hearing, whether or not they are satisfied that there are reasonable grounds to suspect that the evaluation made in the study was made on a system which discriminated on grounds of sex.”
“in our judgment, the scheme of the legislation is to allow an employer to deploy the shield of a qualifying job evaluation in resisting a claim based on a higher-rated comparator but to allow the employee to cause that shield to be cast aside by showing reasonable grounds for suspicion. If that is done, the employer has an evidential burden to explain away, wholly or in part, the matters advanced by the employee or to make out matters not relied upon by the employee with a view to casting the allegedly suspicious in a different light.”
“Whilst it is possible to say that jobs with identical profiles are of equal value it does not necessarily follow that jobs with different profiles are not of equal value.”
“There is however nothing before the Tribunal either by way of binding authority or an authoritative statement of job evaluation practice to say that a job evaluation is apt only if it results in a single value. It was urged upon the Tribunal that it was not to attempt to fill any lacunae in the respondent’s methodology. We conclude, however, that the effect of the claimant’s submissions is to seek to create a lacuna – the absence of a mechanism or rule for bringing the grade and WCD scores together – rather than to work with the methodology as it is. The Tribunal is clear that there is nothing in the respondents methodology that allows an employee to seek higher grade pay based on a factor brought into account only in respect of WCD pay or vice versa: the two factor plans work together but separately to deliver a rating a rating expressed ‘grade n plus WCD level z.’”
“42. Nothing heard in this further hearing caused the Tribunal to doubt its earlier conclusion that the respondents methodology was section 1(5) compliant and did not give rise to reasonable grounds for suspecting discrimination or unsuitability. The Tribunal recognises, however, that it heard only about sample claimants. It accepts Mr Galbraith-Marten’s submission that there may be particular individuals about whom the Tribunal has not heard whose circumstances may fall to be considered on their own facts. The claimants had the opportunity to bring forward such cases as part of the exercise of selecting sample claimants. The Tribunal has determined the issues before it on the basis of the sample claimants and comparators and not on the basis of some other unidentified or unspecified claimant or comparator and hypothetical circumstances that might be found to exist. 43. As a general proposition the respondent’s methodology results in the lion’s share of job evaluation-based pay to flow from the application of the grade factor plan and a much smaller element from the application of the WCD factor plan. A comparison between the respondent’s methodology and the GLPC methodology shows that 8 of the 11 GLPC factor headings were used by the respondent to determine grade pay and the demands under the three remaining GLPC factors were used by the respondent to determine WCD pay, albeit it expanding the three factors into five and increasing the number of levels under each factor. The Tribunal concludes that, for example, under the respondent’s methodology, a person evaluated as grade one cannot claim to be doing work equal to that of a person evaluated as grade two regardless of the grade one person’s level of WCD. A person evaluated as level C for WCD cannot claim to be equal to a person evaluated as level D for WCD. Whether those circumstances properly should lead one to label the WCD element as subordinate may be simply a matter of semantics. The Tribunal heard nothing that properly led to a conclusion that assessing the factors in the grade factor plan and the factors in the WCD factor plan in the way that was done gave rise to a reasonable ground for suspecting discrimination and/or unsuitability. 44. Only Mr Bowers showed the Tribunal any authority. We found nothing in Bromley or Springboard Sunderland Trust to be directly on the point although the passages to which the Tribunal was taken contain helpful reminders of the need to consider whether the results ‘look right’ and to have regard to the full results of the scheme. The Tribunal did not simply consider the methodology as a whole, conclude that it ‘looked right’ and so found that it was not unsuitable. Rather, as appears in our promulgated Reasons, the Tribunal considered the methodology element by element , criticism by criticism and made and set out its findings. Having done that, the Tribunal concluded that the respondent’s methodology ‘looked right’ in the sense that it did not give rise to reasonable grounds for suspecting discrimination or unsuitability. In reaching those conclusions, the Tribunal had regard to the full results of the scheme insofar as those results were shown to us in the course of the hearing. 45. Having considered the matter further, and for the additional reasons set out herein, the Tribunal confirms the conclusions set out in the judgment promulgated on9 December 2013 .”
“380. Dr Watson told the Tribunal of his career history and that he is a member of the ACAS panel of experts for the determination of equal value. He gave evidence as a witness of fact and not an independent expert entitled to express and opinion. One of the facts to which Dr Watson could speak was that Hay, by whom he had previously been employed, to his knowledge had used the technique of considering demands under two separate evaluations. The Tribunal accepted that evidence. The Tribunal understands Hay to be an important player in the job evaluation world. The Tribunal regards as significant that Hay has employed the approach of taking out into a separate evaluation the consideration of working context demand factors such as those used by the respondent. In the absence of any evidence or authority to the contrary, the Tribunal drew the inference that the technique of using two points scores to produce two elements in the pay package is a legitimate approach to job evaluation.”
“387….In effect there would be grade plus the first level of WCD, grade plus the second level of WCD and so on. Even though the aggregate cash pay of grade‑plus‑relatively-high‑WCD might be more than the aggregate pay of someone on the next higher grade but with little or nothing by way of WCD, the latter would always be regarded as having a higher rating.”
“389. Those within a grade but paid a higher level of WCD pay would properly be able to say that the higher level of demand had resulted in a higher rating by the application of a job evaluation. Those within a grade would not be able to contend that they were given an equivalent rating to anyone evaluated to a higher grade. Complications flowing from incremental progression would be avoided.”
“390. The Tribunal recognised evaluating in the way that the respondent has done will produce ‘winners’ and ‘losers’. There will be winners who get something by way of WCD pay who would not have been carried into the next higher grade had the respondent simply used the GLPC factor plan. Equally, there will be others who would have been carried into the next higher grade under the GLPC factor plan and have to settle for a WCD payment that is less advantageous. The Tribunal has been showed no statistics covering the workforce as a whole to show that the pay of men tended to be higher, or the pay of women lower, that it would have been under the GLPC approach. Statistical evidence looking at the overall incidence of WCD payments or of average WCD payment values simply misses that point. Further there is nothing in the closing submissions to reflect an attempt to use the sample claimants and comparators to show what they would have had using the GLPC methodology, a matter that would be likely to have required expert evidence.”
“398… The grade cores and pay and WCD scores and pay represent the value of the job for the purposes of EQP.”
“Under any one heading, the definition takes the form of a ladder in which there is a rung at a level and has a number of points. One cannot get more points than those applicable to the first rung unless one meets the definition attached to the second rung and so on up the ladder. It follows that a difference between two jobs is significant only if it is sufficient to produce and match with a different description under one or more headings. If the difference is not sufficient to have that effect, it is incapable of producing a different score under any factor heading. It follows, in the tribunal’s judgment that differences between two jobs are necessarily not significant for the purposes of job evaluation unless the differences are such as to properly result in a different score under at least one of the headings in the factor plan. If the differences between two jobs would not result in a different score under at least one of the headings in the factor plan, the two jobs would be awarded precisely the same point score and, hence, would be given an identical pay grade. Doctor Watson appeared to be less than convinced by this proposition but with all due respect to him, the Tribunal considered that his position on the point was not sound.”
“The role profiles were intended to reflect levels of job found in a job family. There was no credible evidence that they did not. The tribunal heard nothing to suggest that that had been historical disparities in pay grade between employees in the same line of work. The only historic disparity related to gender of which the Tribunal heard concerned the payment of bonus. ”
“Grade points are the common currency in which the value of jobs that expressed as a result of the evaluation and which allow the comparison between the value of work of jobs that may be very different. Using Mr Galbraith Marten’s example of apples and pears, by scoring each under headings such as colour, sweetness, aroma, texture and so on, one adds up the points in order to conclude whether apples and pears are of equal value. It is the total points scored over an appropriate range of factors that allow the determination of the relative worth of two distinct fruits, or in this case, jobs.”
“The matrix at page 122 brings together ‘contact influence’ in the vertical axis and ‘people management’ in the horizontal axis. The first two columns headed ‘minimal’ and ‘assist team members’. It is only in the third column that ‘supervisor’ appears, and the first column that ‘manage’ appears and the seventh column that ‘direct’ appears. Each role in the vertical axis addressee is the nature of the contact. A person with minimal responsibility for people management could be scored at levels R1, R2 and R3. A person whose contact with team members amounted to giving assistance rather than supervising could score from R2 to R 7. At the general level, such scores make sense to the Tribunal in that it is not difficult to envisage there being within a local authority highly qualified seasoned professionals who give skilled advice and guidance without having a supervisory or managerial remit.”
“Allocation determines the family and level within the job family of the job under consideration. Evaluation, leading to a point score, determines the number of points a job scores and it is that number of points that determines the pay grade into which the job was placed. It is the evaluation of the role profiles that may result in clusters of jobs within the distribution of points and which may be influential in determining whether the grade boundaries fall but the fact that a particular job falls in this role profile rather than that has no bearing on the evaluation of the role profile.”
“Having said that, the tribunal was very conscious that Dr Watson’s evidence as to what he did was based on his opinion as to the soundness of his judgements within the field of expertise of a person skilled, qualified and experienced in the mysteries of job evaluation. The absence of independent experts able to express an opinion on Dr Watson’s work left the tribunal in some difficulty. Whilst the tribunal could bring to bear the eye of interested lay people with some understanding of job evaluation, the tribunal simply lacked the expertise to fully evaluate Dr Watson’s judgment in the abstract.”
“The parties knew the methodology and the outcome of the application of the methodology: they had both ‘route’ and ‘result’. The Tribunal expected that the selection of sample claimants and comparators had been carried out so as to enable the Tribunal to see, through the circumstances of the sample claimants and sample comparators, that there had been questionable outcomes (to deliberately use a phrase that does not appear in the statute so as to convey a concept of the widest import.)”
“[Glasgow] did not consider for a moment offering anything by way of pay protection to those employees who would not suffer a drop in earnings….to put it simply [Glasgow] was interested in protecting the pay of the ‘losers’, that is those who would otherwise see an immediate reduction in their pay packets, and not add to the pay of those perceived as ‘gainers’…”
“[the claimants] pleadings were of little help in identifying the facts that the claimants would seek to prove in order to show that particular claimants were entitled to claim particular terms by way of pay protection relying on a particular comparator or comparators.”
“the justification must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and necessary for that purpose, subsequently modified in Haq to ‘reasonably necessary’”
“We will start to work with you to agree your development and career plans and help you develop new skills. These will provide opportunities for you to protect your income, including better utilising your current skills, enhancing your current job and applying for higher level posts within the Council.”
“At no point was any, or any meaningful, consideration given to extending the majority of protection arrangement to those women who, to the knowledge of the Council, had been underpaid by reference to their male comparators for years and who would, by virtue of the same protection arrangement, continue to be underpaid.”
“What is required is the application of the principle of proportionality i.e. an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition, applying the principle that the more serious the discrimination the more cogent any justification must be. The employer does not have to demonstrate that no other course could have been taken.”
“The Tribunal considered whether the pay protection arrangements had the effect of continuing past pay discrimination.”
“The respondent has made concessions in relation to the payment of bonus. We concluded that we cannot go behind those concessions, and therefore proceeded on the basis that the respondent has no defence in justification to the pre-WPBR bonus payments. ... It was for the respondent to provide, at least an explanation, for pay differences, if not objective justification and, whether by reason of its concessions or otherwise those explanations or justifications have not been forthcoming.”
“On the facts found, the payment of unjustified bonus was the reason why some employees received a transitional payment. The majority – at least 2 to 1 – fell into protection for some reason other than the payment of bonus and the ground has not been laid for a finding that the reason for the others falling into protection was tainted by sex.”
“The Tribunal has proceeded on the basis that the respondent’s payment of bonus gave rise to discrimination.”
“ the Tribunal concluded that the respondent’s actions to meet their legitimate objectives passed the test of proportionality for these reasons.”
“901. Firstly, an effect of WPBR was to put in place pay arrangements that resulted in only some of those who previously were paid bonus falling into pay protection. The 20% bonus earners in street cleansing do not appear to have fallen into protection at all. Of the refuse collectors and refuse drivers, it seems only those (or some of those) with the (Wheelie Bin) suffix did. Amongst the Gardeners and Road workers those at the 1 level seem to have required protection but not all of those at the 2 and 3 levels did and those at the 4 level appear not to have done at all. The Tribunal concludes that WPBR immediately reduced the discriminatory effect of the former bonus arrangements. 902. At least two thirds of those who fell into protection were from the APT&C sector. Bonus was not an issue in that sector. There has been no evidence before the Tribunal to show that discrimination in respect of pay was an issue in the APT&C sector. The Tribunal attached weight in assessing proportionality to the fact that the protection of former discriminatory bonus payments was probably an issue in respect of less than a third of all cases of pay protection and balanced that, in particular, against the advantage of a rule that treated alike all of those whose reckonable pre –WPBR earnings exceeded reckonable WPBR earnings. 903. That the transitional allowance was time limited was important. In effect, any pay advantage accruing from the payment of discriminatory bonus would leave the system on the expiry of the three-year period. Further, since the commencement of that period was back-dated to1 April 2006 , the transitional payment remained in place for a little over two years from the time the workforce agreed to the WPBR terms. Moreover, the respondent strove to eliminate detriment, and, hence, the transitional payment, through the Employee Development Commitment. As appears in the Departmental reports, for some, service reform was introduced in the very early days following the implementation of WPBR so that eh required period of protection in those cases was very much less than three years.”
“The justification given must be based on a legitimate object. The means chosen to achieve that objective must be appropriate and necessary for that purpose.”
“Here the superficial and overt reason for inclusion in the pay protection scheme was the suffering of a wage drop on changeover day. That was not, on the face of it, anything to do with sex. But if one then looks at the underlying reasons why the men suffered a wage drop on changeover and the women did not, the questions and answers go as follows: Why did the men suffer a drop in pay? Because they lost little bonuses. Why did the women not suffer a drop in pay on that day? Because they had been underpaid and the period preceding changeover . Why had been underpaid in the preceding period? Because there had been unlawfully discriminated against in that period. The two had been entitled to the same pay as the men who had been on bonuses. Thus the reason for the new pay differential was causally related to the historic unlawful sex discrimination.”