There are far too many (women) who are discriminated against and far too many employers who are using every single legal argument and loophole to dodge their obligations under equal pay law

Introduction The Equality achievement 2010 (EqA)1 came into force on the 1st October 2010, replacing the preceding Equal Pay minute 19702, with the aim of whirl greater certainty. Despite this, thither is largely a replication of the terms of the 1970 behave and in that respect catch ones breath difficulties in enforcing the fundamental rule of comprise contri only ife for equal work, which is set out in obligate 157 of the Treaty on the Functioning of the European Union3 (TFEU). This has several(prenominal) elements which can potenti tout ensembley be repugnd by employers feeling to discriminate against women, two of which subjects will be looked at present, in order to confirm or repudiate the statement made at the outset that employers ar using the legal argument to dodge their obligations. For the purposes of inclination this point, two issues will be take aimed, in to a greater extent detail the need for a comparator and the literal exculpation disaffirma tion.Comparator The sex equality requirement prohibits pay favouritism found on sex and t here(predicate)fore a woman spirit to bring a take aim of this nature will need to be up to(p) to compare her contractual terms with a like or fittingly uniform male comparator. This flavour of a comparator is used across the whole sports stadium of contrariety however it is treated somewhat to a greater extent stringently in the discipline of equal pay. In accordance with the EqA, it is necessary for the comparator to be actual. Unlike another(prenominal) commonwealths of discrimination where the comparator can be hypothetical, it is necessary for the woman in this situation to run across an actual comparator. It is besides necessary for the comparator to be in the same employment, i.e. industrious by the same employer or at to the lowest degree an associated employer. The comparator must also be a legitimate or former employee, but cannot be a successor and the comparator is fundamentally the claimants choice. Bearing in mind all of these requirements, it is possible to see that there are several options avail fit to the employer, when it comes to arguing the hardness of a comparator.In the slick of Macarthys in 1980, it was held that there needed to be an actual comparator with the judge stating Comparisons are confined to parallels which may be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same giving medication or service4. It is noted that this is not the drive with a direct pay discrimination claim, where a hypothetical comparator may be allowed for the purposes of evidencing sex discrimination and slight(prenominal) pay for the same work.A similar difficulty emerges in the area of working in the same establishment. In the case of the urban center of Edinburgh Council, 20125, where the versed House of the Court overturned the previous termination of the EAT that had previ ously argued that the terminology establishment could ca-ca a broad meaning. Instead, the Inner House dependant this substantially by saying that the comparator had to work at an establishment that was largely in the same geographical area. An employee looking to claim that they are being paying(a) less(prenominal) will also need to find a comparator who is broadly employed on unwashed terms (as stated in Section 1(6) of the 1970 Act and restated in EqA). For example, in the case of Leverton (1989)6, it was possible for egg-producing(prenominal) nursery nurses to argue that they were being paid less than their comparators who were male clerical staff. All staff had a purple book of terms and conditions and this was sufficient to argue that they had common terms.Finally, there is the date frame over which the comparator has worked, with the ability of the claimant to look at a precursor but not a successor. This was supported by the case of Walton, 20087, where it was held th at a successor could not be used, as this would require the courts to hypothesise as to whether the comparator would establish been treated differently, had they been employed at the same time. This is based on the argument that by looking into the next this would be hypothetical situation and impossible to meditate how the employer would act in the future. It can therefore be seen that there are multiple issues involved in locating a comparator, which can potentially set up it easier for an employer to get off their obligations and to allow them to look at shipway of paying female employees less, either directly or indirectly, or at the very least make the matter difficult for an employee to exhibit, in the absence of an self-explanatory and exact comparator.Material JustificationAnother area which presents a real opportunity for the employer to look at escaping liability is the use of the material divisor defense mechanism contained in both the EqA and the 1970 Act. Thi s defence allows an employer to pay an employee less than a comparator for whom they would otherwise be demand to take care equal pay, due to some non-discriminatory land. There is non- peculiar(prenominal) requirement to deal with the notion of material defence, subsequently the issue of equal pay has been discussed and it may be that the tribunal will in fact consider the material justification defence, at the outset, when looking at whether the jobs were of equal value8.The material factor defence is dealt with in Section 1(3) of the 1970 Act, where it is stated that the employer would acquit a defence, if they could found that the deviance in salary is genuinely due to a material factor which is not the deviation of sex. This is a genuine requirement and allows for employers to have a distinction between pay where it is required for the business need.An employer can show that they have a material factor defence where they can prove the following. Firstly that the expla nation is genuine, secondly that the reason for less favourable treatment was cut back to that explanation, thirdly that the reason was not considered to be the difference of sex and ultimately that the reason is a significant and relevant difference between the man and woman in the instance9. When looking at the genuineness of the situation, the House of Lords stated in Bury Metropolitan Council that tribunals should not become in like manner concerned over the issue of genuineness and should kinda simply look at the facts surrounding the situation10. In this case, it was also stated that the difference will just be a sham, if it has been deliberately fabricated in order to present things otherwise than as they are.Crucially, it is also necessary for the factor to be material meaning, in accordance with Rainey, 1987, where the difference is significant and relevant, but this could be with reference to external factors, such as the market and not necessarily simply down to the skills and knowledge of the individuals in question11. When it comes to material justification, the load of demonstration shifts from party to party in such a way that offers a real opportunity for the employer to escape liability. Once the employee has shown that there is a prima facie case for an equal pay claim, the employer then has the burden of cover a material factor defence, before the burden then travelling back to the employee to show that this was not genuine or in error in some way.For example, it may be argued, as was the case in Cooksey and Others (2011)12, that the use of an on call hire had the impact of men getting paid more than than women, due to men being typically more available to undertake such work this was sufficient to constitute a material factor defence and the case was allowed, with the employer being culpable.ConclusionIt is concluded here that the original statement made that employers have been able to use legal argument and loopholes as a key way of escaping liability under the equal pay legislation is not merely a theoretical argument, but one that is supported and shown time and time again through the tribunals and court system. It is argued here that by just looking at the area of identifying a comparator and the area of a material factor defence, there is a multitude of complexities that can be used by the employer to parry liability. This area ineluctably to be revisited carefully, if there is to be sufficient aegis offered to women, in the future. As it stands, all but the around obvious of discriminatory scenarios are likely to evade the full extent of the legislation and this matter requires review, as a matter of urgency. Practicality is such that there are a variety of factors which may lead to a discrepancy of pay yet this needs to be addressed to ensure that any differences are materially justifiable and are appropriate in all circumstances so as to reduce the boilersuit pay gap as far as possible.Bibliog raphyBury Metropolitan Borough Council v Hamilton and other cases 2011 IRLR 358City of Edinburgh Council v Wilkinson and others 2012 IRLR 202,Cooksey and Others v Trafford Borough Council and others UKEAT/0255/11Equality Act 2010Equal Pay Act 1970Forex Neptune (Overseas) Ltd v moth miller 1987 ICR 170,Glasgow City Council v Marshall 2000 ICR 196 (HL)Treaty on the Functioning of the European UnionLeverton v Clwyd County Council 1989 IRLR 28 (HL).Macarthys Ltd v Smith 1980 IRLR 210Prentis D, Unison. 2013. commenting on North and ors v Dumfries and Galloway Council 2013 SC 45Rainey v Greater Glasgow health Board 1987 ICR 129Walton Centre for Neurology & Neuro Surgery NHS hope v Bewley 2008 IRLR 588