ABSTRACT
The claimant may choose with which employee she is claiming equality.37 However, EAT authority that an employment tribunal may not substitute a more suitable or ‘representative’ comparator38 had doubt put upon it by a dictum of Balcombe LJ in British Coal Corp v Smith.39 He commented that it: ‘is necessary that the selected male comparator should be representative of the class, or group, of male employees from whom he is selected ...’40 He argued that this limitation is implicit in the somewhat more collective and less individualistic approach to issues of equal pay which has been taken by the European Court. This is especially the case where the claim is based on equal value, and true most of all where based on a difference in average pay between a group of men and a group of women. Here the selection of the appropriate group is crucial to the claim, and, according to the European Court in the Royal Copenhagen41 case, must: ‘encompass groups each comprising all the workers who, taking account of a set of factors such as the nature of the work, the training requirements and the working conditions, can be considered to be in a comparable situation. [Such] comparison ... must cover a relatively large number of workers in order to ensure that the differences found are not due to purely fortuitous or short term factors or to differences in the individual output of the workers concerned.’42
