In BMC Software Ltd v Shaikh, the Claimant was successful in her equal pay claim, as her former employer was unable to justify why a male colleague was paid more. Further the Tribunal claimed that a breach of the “sex equality clause”, which gives a female the benefit of the male colleague’s more favourable terms, was a repudiatory breach of trust and confidence, finding constructive unfair dismissal and a breach of the Equality Act.
BMC appealed to the EAT, who found that a breach of equal pay cannot give rise to a sex discrimination claim as the law expressly prohibits this. Equal pay is a claim for breach of contract, while discrimination is a claim in tort, giving rise to injury to feelings compensation, the two claims are “mutually exclusive” and an employee cannot succeed in both types of claim in relation to the same breach.
This is a warning to employers that failure to pay equal pay could be grounds for resignation and a constructive dismissal claim. For claimants this is a reminder of the segregation between equal pay and discrimination claims and that equal pay claims do not lead to an award of injury to feelings.