The Employment Appeal Tribunal has held that an employer's breach of the implied sex equality clause, giving rise to a successful equal pay claim, could constitute a constructive dismissal under the Employment Rights Act 1996.

However, that dismissal could not form the basis of a separate sex discrimination claim under the Equality Act 2010 (EqA 2010).

The separation of equal pay claims and sex discrimination claims under the predecessor legislation is preserved by section 70 EqA 2010, which has the effect of making the two causes of action "mutually exclusive".

Although breach of a sex equality clause in the form of a failure to pay a woman the same as a man for like work is plainly a form of sex discrimination, an employee cannot succeed in both an equal pay claim and a sex discrimination claim in respect of that breach.

Section 71 of the EqA 2010 is not an exception to section 70, nor a "gateway" for claims of sex discrimination to arise out of breach of a sex equality clause. Section 71 permits direct discrimination claims in respect of contractual terms as to pay only where a sex equality clause is not effective. (BMC Software Ltd v Shaikh UKEAT/0092/16.)

This article incorporates material originally published on Practical Law's website on 16 August 2017 and is reproduced with the permission of Thomson Reuters.

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