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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I used to work company called Morgan Sindall i was based

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I used to work for a company called Morgan Sindall i was based at the Larkhall depot in Scotland we also have depots in Ware and Rugby.
I was employed as a Nominated Person (NOM) working on the overheads on the railway, although i was employed as a Nom i t stated in my contract that i would only be paid my substantive rate if i carried out those specific duties and i would be paid a lower rate for carrying out lesser grade duties.
Everyone in my depot who was a Nom was on the same contract under the same conditions as i was and it was never an issue because that is what it said in our contracts.
In 2012 we discovered that this was not the case in the Ware and Rugby depots and that the Nom's there were getting paid their substantive rate regardless of the duties they were carrying out. They were on exactly the same contracts as us under the same conditions so why were they getting their substantive rate and we were not. We elected a spokes person who at a meeting with senior management asked if this was indeed happening, the answer he got was yes but we would not be receiving it in Scotland with no further explanation given.
The staff in the Larkhall depot refused to except this and kept asking the question why this was happening Eventually Morgan Sindall relented and started paying the Larkhall staff their substantive rate the same as our other two depots down south, this only lasted for six months and then it stopped but only in our depot in Larkhall and continued at our depots down south. Again we asked the question why were we paid different from our colleagues down south as they were on the same contracts as us and under the same conditions.
I left Morgan Sindall on September the 4th this year and substantive rate was one of the main reasons i still have friends and ex colleagues at Morgans who are still trying to get answers as to why this was happening, we were on exactly the same contracts under exactly the same conditions working for the same company.
All we are looking for is an answer, are Morgan Sindall legally allowed to pay staff this way, or could this be construed as discrimination towards the staff in the Larkhall depot. Thank you in advance for you time and help.
Regards,
William McAvoy.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. What is your question about this please?
Customer: replied 2 years ago.

Morgan Sindall pay their staff in their Ware and Rugby depots their substantive rate regardless of what duties they carry out. The staff in the Larkhall depot are paid the rate for the duties they are doing i.e. if they are working as a Nominated Person (NOM) they are paid as a Nom if they work as a controller of site safety (coss)they are paid as a coss, as is stated in our contracts

We all work for the same company, we are on the same Nominated Persons contract as our Ware and Rugby colleagues our contracts state the same conditions so why are we treated and paid differently to them. could this be seen as discrimination towards the staff in the Larkhall depot.

Expert:  Ben Jones replied 2 years ago.
Hello, sorry I was offline by the time you replied. First of all you need to check what your contract says. If it specifically says that you will be paid a lesser rate for doing lesser duties then strictly speaking the employer can enforce that and not pay you full rate regardless of the work you do. Just because there are other depots on the same contract and they are getting preferential treatment in that respect does not mean that there is an obligation on the employer to treat you all the same and pay you the same. Put it that way – you could have two people doing exactly the same job, down to every minute detail and the employer could decide to pay one of them twice as much as the other one. At first sight it may be unfair, but it is not actually illegal. In fact, the law on equal pay is frequently misunderstood. Many workers believe that there is a right to equal pay across the workforce, especially for workers that perform the same or similar jobs. However, the reality is that employers are free to pay their employees whatever they want, as long as it is above the current National Minimum Wage and in accordance with the employee's contract of employment. It is not generally unlawful to pay employees doing the same or similar jobs different rates. The only time this would be an issue is if the reasons for the difference in pay is discriminatory, mainly due to a difference in gender. The relevant law was originally brought in to deal with the fact that many women were being paid less than their male colleagues for doing the same job. Whilst this protection still applies, to be successful in a claim you must show that the reason for being paid less is actually gender-related. It is no good claiming that you are being paid less than someone else, unless it can be shown that the reasons for this difference in pay is due to gender. There could be a further issue of discrimination if you can show that this is brought on because of nationality, so the employer is actually treating the Scottish employees worse than its English ones and it cannot be justified for any other reason but nationality. Even if there was evidence that the reasons for the difference in pay may be discriminatory, the employer could still try and rely on the 'genuine material factor' defence to defend any equal pay claim. This would occur where the employer can show that the difference in pay is due to:{C}· Past performance{C}· Seniority or length of service{C}· Different hours of work{C}· Geographical differences{C}· Different skills, qualifications and experience{C}· Pay protection following job re-grading So unless there were discriminatory reasons for the difference in pay, there is nothing illegal in paying different rates even if the workers are performing the same job. I agree that is appears unfair and morally wrong, but unfortunately it is not illegal. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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