Is this Sex discrimination?

[GenderPayGap]

I'm being treated unfairly by my employer and I need to work out how far to take this. Sorry, this is slightly long and complicated.

My company underwent a big re-organisation about 2 years ago. Just after it happened, I moved from an existing job within the company to a new job within the same company. The job is completely different from my old job, and holds considerably more responsibility.

When I was offered the job, I was told it would likely be a Grade 3 post, but it hadn't been assigned a grade yet because it was a new post. However, when my official offer letter came, it said that the company's internal transfer rules stated that staff had to transfer across on their existing pay grade until the job was re-evaluated. My existing pay grade was Grade 2 - i.e. a pay grade lower than what I expected my new job to be.

I disputed this at the time, saying that this job was totally different from my old job, held much more responsibility, and that I had been told it would be a grade 3 and I had applied for, and accepted, the job on that understanding. My line manager backed me up on this. However, my employer refused to budge and insisted that they were unable to assign my post a grade because it was an entirely new post, and that I would have to stay on my old pay grade until the job evaluation process was completed across the company. THey said that if my post was evaluated at a higher grade, I would then receive back pay from the date I started in my new job. I was told that this would happen 'in the next few months', and with that I was happy to wait.

At the same time as I accepted my post, another almost identical post was given to guy in the same situation as me. He transferred across from another post and was also told he had to stay on his old pay grade. However, his old pay grade was already a Grade 3, so he was on a grade higher than me doing the same job.

Since then, several new posts have been filled within the company - all of which have been assigned pay grades (and all of which are higher than mine despite them being similar jobs to mine). So the company's argument that they couldn't assign pay grades to new posts until job evaluation was complete was complete rubbish.

It has now been nearly 2 years since I started my new post. I'm still in an 'ungraded' post, and still being paid my old job's salary. Job evaluation is finally underway, and I expect to hear soon. I absolutely expect to be assigned a higher pay grade, and I will be entitled to nearly 2 years back pay. However, there are rumours that the company is going to renege on the back pay and cap it to 6 months.

So I'm preparing for a fight. I believe I have been discriminated against purely on the date I started my post - since people who started after me were assigned pay grades when I'd been told it was impossible.

Some of my colleagues suggest I should argue I'm being subjected to Sex discrimination on the basis that my male colleague doing the same job as me is on a higher pay grade. I've always said that this situation has arisen just due to crappy rules on transferring across on old grades, and is nothing to do with sex.

However, I've recently been thinking - if the tables had been turned, would my male colleague have acquiesced as easily as I did? Are my employers getting away with it because I'm a woman, and don't want to make a fuss? I'm delighted with my job and felt truly honoured to be offered it. I didn't want to complain or rock the boat, or seem ungrateful. It brought to mind this Essay by Jennifer Lawrence on Gender Pay gaps

She argues that she was paid less than her male colleagues because she didn't fight as hard, because that's what women do. I'm inclined to agree with her, and I wonder - did I do the same thing?

Is this sex discrimination? And assuming my company do give me the back pay I'm owed, will I be entitled to ask for the interest on that money that I should have been earning for nearly 2 years?

Thanks if you've got this far, I'd really appreciate anyone's advice on this

Hope someone come along shortly with some actual advice.

It sounds a bit dodgy to me (but I'm no expert). Do you have a union? Can you approach HR to ask for a copy of the policy on how the transfers were to be handled? In situations like this the devil is often in the detail.

Most companies would be quite afraid enough that you bought gender discrimination into it - so perhaps the threat of that enough might be enough to help? Sorry, no real advice but it sounds shit. Do not let them screw you over.

Whats taken them so long in sorting out the grading? Will your line manager support you?

did they say to the man he would be down-graded to a Grade 2 and his pay reduced (and clawed back) if it was decided to be a Grade 2 post?

I think you should speak to your HR department

I think that you might want to consider the tax impact rather more carefully than accrued interest on 2 years' back pay. I have no idea what you are paid and where that is compared to personal tax bands, but in many cases you are much better off being paid smoothly over 3 tax years than a lump sum of back pay.

Thanks everyone for responding.

Do you have a union? Can you approach HR to ask for a copy of the policy on how the transfers were to be handled?

We do have a union, but I'm not a member. I think I need to be though. I have a copy of the policy on transfers - the policy does indeed state that staff will be transferred across on existing pay. However, as my job was an entirely new job, that I applied for and was interviewed for - i.e. was not strictly a transfer, I did try to argue that it should be treated as a new post. They disagreed.

Whats taken them so long in sorting out the grading? Will your line manager support you?

No idea. It's a massive mess. The company directors had their job grades evaluated over a year ago, increased their own salaries, and paid themselves back pay. It's appalling. But it does give me ammunition to use if they dare to refuse my own back pay. And yes, my line manager is fully supportive and is trying to fight my corner.

did they say to the man he would be down-graded to a Grade 2 and his pay reduced (and clawed back) if it was decided to be a Grade 2 post?

No, because there's no way this is a Grade 2 post. It's completely different from my old post and holds considerably more responsibility. There are lots of existing staff doing very similar jobs, none of whom are on less than Grade 3, and some are even a grade higher than that.

I think you should speak to your HR department It is the HR department who are doing this. It was them who insisted I stayed on my old pay grade, and who told me it would be sorted within a few months, and that I'd get back pay. To be fair to them, it's not their fault the evaluation has taken so long. But to ignore me and leave me in limbo for 2 years is just appalling.

I think that you might want to consider the tax impact rather more carefully than accrued interest on 2 years' back pay

Do you mean I might be worse off paying tax on a lump sum of back pay? It won't be a huge amount, my pay isn't that good. I don't really understand how the tax would work. Is this something the union could help with too?

My situation at the moment is I'm not fighting this. I'm waiting patiently for the evaluation, which I fully expect will raise my job grade and I expect back pay. If they refuse to do this, then I will fight them and that's where I might have to use the gender discrimination card.

If it all happens within the next few months, then I'll just accept it quietly I suppose. Even though I've spent 2 years doing a job on the wrong salary with no apology from my employer.

If your pay isn't that good and the lump sum won't be that much then it might not be a tax issue. But if some of it is taxed at 40% because it bumps you over the £42k threshold, but if spread out you wouldn't have hit that threshold then you might lose out.

At the other end of the scale, it might impact things like tax credits. But I don't know anything about them.

I won't be over the £42k threshold, and I don't have tax credits (don't understand them either!). I earn in the high £20's but my new salary should be mid 30k I think.

So does that mean I won't have any issue with tax?

It sounds like it won't have an impact to me. But 2 years back pay on that kind of differential is a lot! No wonder you are concerned that they do the right thing.

It's late, so excuse me if I've misunderstood. They have been entirely unreasonable to take so long and I completely understand why you are unhappy.

I don't understand your argument for sex discrimination though. He was treated the same, but he started on a higher pay grade. Your argument appears to be that if you weren't female you might have argued faster and got upgraded sooner? But that isn't the companies fault, and he wasn't upgraded earlier, he's been subject to the same rules as you. He just started on a higher grade, and therefore won't have any back pay?

Anchor yes, you've got it right. They haven't treated me any differently to my male colleague, its just circumstance that he started on a higher salary than me. We're both subject to the same rule and delays etc.

It isn't really a gender discrimination thing. But, the fact remains that I'm being paid considerably less than my male colleague for the same job. We're hoping that will all be resolved soon with the evaluation, but if it isn't, or if they refuse to pay me the full back pay I will have to fight them for it.

So my question is, could I then use gender discrimination as an argument, even though I know it's not the real reason for the pay disparity?

And yeah, I did wonder whether if I was male I might have argued it harder and been upgraded faster. I agree it's a tenuous link to gender disc. but the Jennifer Lawrence essay really made me think that sex discrimination comes in many forms.

Meh, I'm not an expert on Job Evaluation, but here are a few points:-

The job you moved to - was this advertised internally or externally? The other jobs that have been filled since you started, were these advertised externally and filled externally (not the grade 3 man, he sounds like another transfer).

As for Grade 3 man - you say the job is 'almost' identical. Is it very close? In the unlikely event of the post being downgraded there is usually a clause about 'ringfencing' to protect the salary (do you know how long this is for?). If the job is similar in the main, I think you have a good chance of getting back pay from at least his start date (and preferably yours ...) otherwise that would be unfair.

Presumably the company has spent all-this-time evaluating the various roles in the company and producing the role evaluations to use/fit in to. If you can compare your job to the Grade 3 man closely in all the relevant areas (the ones that they use themselves) then I would think you have a great case for arguing that the pay should be backdated, or ask them why a man has been paid more for doing the same job as a woman especially as you had the role first. I would have thought that the job evaluation scheme focuses mainly on the role and responsibilities, the effort required and the experience or skills needed to fulfil that role. Do you have similar work experience and qualifications to Grade 3 man?

Sounds like it's worth a call to the Equality Advisory and Support Service (EASS):

Phone: 0808 800 0082
Textphone: 0808 800 0084

Post: FREEPOST Equality Advisory Support Service FPN4431

Opening hours:

09:00 to 20:00 Monday to Friday
10:00 to 14:00 Saturday
closed on Sundays and Bank Holidays

The job was advertised internally. I was told that as it's a new post, it's not possible to assign it a grade until the evaluation across the company is complete. Grade 3 man's post was also an internal advert.

The other posts that have been filled and graded were externally advertised. So of course they couldn't advertise those without a grade. But that does kind of negate their argument for not grading my post.

Yes, Grade 3 man's post is identical to mine, save for a minor detail - he focuses on one aspect of the company while I focus on another. But we do the same job for each of those aspects.

Yes there is a ringfencing clause, I think it's for 3 years. But it's highly unlikely that his post will get downgraded. He's actually hoping it will be graded even higher than he's currently on (there are others in the company doing similar jobs at higher grades).

Yes the job evaluation focuses on role and responsibilities etc, and I do have a similar background to Grade 3 man. For what it's worth, he's fully on my side as well and we'll fight the job grading together - although while I'd be happy with just getting what he currently gets, he wants to fight for even higher.

Thank you Devora , I didn't know about them and I'll certainly give them a call if they don't evaluate my role fairly. Not sure there's much they can advise before the evaluation is done though, since all I can do is wait and see I guess?

I don't think his will be downgraded at all either. But the idea of job evaluation is to ensure that all employees are treated fairly, for doing the same kind of work across a large company (I'm guessing you are not-for-profit) so to leave you disadvantaged for so long is really against the spirit of the scheme.

so to leave you disadvantaged for so long is really against the spirit of the scheme.

Yes indeed it is. In fact, if the job eval wasn't looming and stalling everything, I'd have been regraded a long time ago. So ironically it's the job eval that has lead to me being out of pocket for so long.

And would you believe I work in the public sector? If I didn't love my job so much I'd have left by now, they treat their staff appallingly.

I do think you need to think about the tax - if you are on £28k and move to £35k, that is £7k a year. 2 years back pay is £14k, so in one tax year you will get £49k.
about £7k will be taxed at 40%, so you pay more tax than if you were at £35k for 3 years.

carol that's a good point. I'll have to do the sums and work it out - although I don't know how much (if at all!) my salary will be increased by, but I'll work through a few scenarios.

If it does turn out I'm being penalized unfairly, is there some way around that? Could the union help me fight that?

I really need to join the union don't I?... I naively thought I didn't need to join a union because I trusted my employer to treat me fairly

You could probably ask for your back pay to be part paid in 2015/16 tax year and part in 2016/17.

The union won't be able to fight tax as that will be up to HMRC.

You do need to join the union.
However, this is now a preexisting problem, and you will not be able to access legal support.

It does look like indirect sex discrimination, because they are paying a man more for doing the same job, they know that they are and they haven't made any attempt to resolve it in a reasonable timeframe.

Phone the equality people.
Join your Union - presuming its unison as you are public sector, and hope that the branch will support you. If it can't be dealt with within the employer though - you will not get help beyond that.

Hence the reason Union membership is so vital.
It's a bit like car insurance, you hope you'll never have an accident, but it's a bit late to look for a policy after the accident has happened!

I think most of the points have been covered but I just wanted to add that if doesn't sound as if you were treated unfairly when your role changed - however if your job is clearly similar or identical to the man's job, then that seems like sex discrimination to me. 2 years is demonstrably too long to take to reevaluate your role - demonstrated by your colleagues all being reevaluated within that timescale. In that time you have been doing the same job as a man, for less money. Go figure.

Equal pay issue

You do need to join the union. However, this is now a preexisting problem, and you will not be able to access legal support.

Yes, that's only fair. However, given that the job eval hasn't happened yet, I could join the union now and I'm hoping they could help me if the job eval isn't fair or if the company refuse to pay my full back pay. Because technically that problem hasn't happened yet.

if your job is clearly similar or identical to the man's job, then that seems like sex discrimination to me. 2 years is demonstrably too long to take to reevaluate your role - demonstrated by your colleagues all being reevaluated within that timescale. In that time you have been doing the same job as a man, for less money.

So, given that my employer is promising job evaluation in the near future, is there anything else I can do other than wait patiently and hope they give me a fair outcome? Do I just have to put up with it until it's resolved?