Isle of Man: Equality Of Terms – The Challenges Of The Equality Bill 2016

Last Updated: 8 March 2018
Article by Chiva Samani

Hailed by politicians in the government as being "one of the most important pieces of social legislation progressed in the Isle of Man in recent times", the Equality Bill is steadily sailing towards finalisation and is expected, with a fair wind, to become part of Manx legislation during the course of this summer.

The proposed new legislation will consolidate, refine and expand upon the existing (and limited) patchwork of legislation dealing with discrimination and equality in the Isle of Man and make it unlawful to discriminate (directly or indirectly or by way of harassment) on the grounds of certain "protected characteristics", including sex, age, disability, gender reassignment, race (to include caste – a departure from the UK model), religion or belief and sexual orientation.

In this article, we take a closer look at the equality of terms provisions and how the Equality Bill is likely to change the current landscape.  Helpfully, the Equality Bill is largely styled on the Equality Act 2010 (Act of Parliament) thus allowing us to draw on the experiences of our English counterparts on equality at work in practice.

What do we mean by equality of terms?

It is important to note that the Isle of Man has had the benefit of equal pay legislation for some years already. Indeed, the Employment (Sex Discrimination) Act 2000 provides for equality of terms for men and women doing "like work" or "work rated equivalent" to that of the opposite sex. This means that where two employees of opposite sexes are deemed to perform like work or work related on equivalent, the terms of one party's contract should not be less favourable than that of the other.

The Equality Bill will expand upon this by introducing the concept of equality of terms for work of "equal value".

Equal work

"Like work"

Work is like work where the work of the man and woman is "the same or broadly similar".

In establishing whether the jobs are the same or broadly similar, consideration is given to the type of work involved, and the skill and knowledge required to do it.

If there are any differences in terms of pay (or other terms), it is for the employer to distance itself from the notion of "like work" and to demonstrate that there are differences in the work performed, for example different levels of responsibility/qualification or one party working unsociable hours or having additional duties.

The differences on which the employer relies however must be differences of "practical importance" in the work performed. By way of illustration, it has been held that a woman preparing lunch for directors and a man preparing breakfast, lunch and tea for employees did not constitute a difference of practical importance in the work performed so as to justify a pay gap. Likewise, a pay differential between male and female supermarket operatives whose role was to stack shelves was deemed to be unjustifiable where the only difference between the two sexes was that male employees lifted the heavier items.

"Work rated as equivalent"

A woman is regarded as employed on work "rated as equivalent" with that of a man if a job evaluation study has given an equal value to their jobs.

A job evaluation study is a study carried out by an employer which aims to evaluate, and in essence rank, the jobs done by its employees, by assessing the job against factors such as effort required, skill and decision-making.

In order to withstand challenge, the study needs to be analytical (that is to say, it must break down the whole job in various factors) and objective in nature.

Provided the employer has carried out a valid and non-discriminatory job evaluation, such study can be deployed as a complete defence to an equal pay claim.

"Work of equal value"

What, then, is the position of an employee who wishes to make an equal pay claim but (a) there are no employees doing a similar job and (b) the employer has not undertaken a job evaluation study?

This is where a claim for work of equal value comes into play.

It is particularly useful as it allows for jobs of entirely different natures to be compared against each other. By way of illustration, and drawing on English caselaw, a woman engaged in clerical work successfully compared herself to a male warehouse operative. Likewise, a female school nursery nurse successfully used a male local government architectural technician as a comparator.

A claim of work of equal value can be made where an employee can show that he/she does work of equal value to a comparator of the opposite sex.

Whether work is rated as being of equal worth is ascertained by reference to the demands made on the two employees (for example in terms of effort required, training/skills, conditions of work, the extent of decision making involved).


In order to bring an equal pay claim, a claimant must identify an appropriate comparator with whose contract they can compare the terms of their contract. The comparator must be employed by the same employer, or by an "associate of" the claimant's employer (i.e. a company over which the employer company has control, or a company which is under common control with the employer company by a third party).

In addition to this, the comparator must also either (a) be employed at the same establishment as the claimant, or (b) if he/she works at a different establishment, common terms must apply at the two establishments (either generally or as between the claimant and comparator).

What then happens if there are no actual comparators? An employee cannot conjure up a hypothetical comparator – indeed, the legislation requires an actual comparator to be used. Nonetheless, a claimant can compare themselves against an employee previously employed by the employer or by an associated company.

The need to show less favourable terms

Once an employee has established that he/she is doing like work/work rated equivalent to, or work of equal value to an appropriate comparator, the next step is for the claimant to show that his/her contract has terms which are less favourable than those of his/her comparator.

The comparison goes way beyond a simple arithmetical comparison of the employees' respective salaries. Indeed, equality of terms applies to all terms of employment.

The law requires a term by term comparison. In practical terms, this means that where a specific term of a woman's contract is less favourable than of her male comparator (e.g. pay), the employer cannot defend that claim by asserting that the female employee enjoys other more favourable terms.

Material factor defence

An employer will be able to deflect an equality claim if it can show that the difference in terms is due to a material factor, that is to say that (a) the difference is not due to sex discrimination and (b) that the difference is a proportionate means of achieving a legitimate aim. Employers have successfully deployed reasons such as market forces/skills shortages (and the associated need to pay certain staff more in order to recruit and/or retain them), and geographical differences as material factor defences. Red circling (where an employee's pay rate is approved to be above the established salary maximum for that position, and the employee is not eligible for further base pay increases until the range maximum surpasses the employee's pay rate) has also been deemed to be a valid material factor defence .

Time limits and remedies

Equality of terms claims will generally need to be brought within a period of six months beginning with the last day of employment. In a successful claim, the Employment Tribunal will have a variety of remedies available to it including an award of compensation amounting to up to 2 years of pay arrears.

What next?

The introduction of the notion of equal pay for work of equal value dramatically increases the range of positions within which parity of terms will be expected going forward. This will no doubt compel employers and their human resources functions to meticulously review their workforces' existing contractual arrangements and equalise terms where differences are found which cannot be justified on grounds other than sex.

Acknowledging the magnitude of the task, the Government intends to phase in the new legislation over 2 years to allow employers sufficient time to review their pay package structures. Whilst this should provide sufficient time for employers to put their houses in order, one thing is for sure – the Equality Bill, once introduced, will be here to stay and could land employers with the payment of hefty damages awards if they choose to ignore the new culture the Bill seeks to introduce. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions