Equal pay issues reported in the media usually involve women claiming that they are not being paid as much as their male counterparts but, men can also bring equal pay claims by comparing themselves to women who are earning more or who enjoy better benefits than them.
Google recently admitted that it had discovered it was underpaying some of its male employees in the USA. The explanation for this was that managers have the discretion to boost pay using dedicated funds for such adjustments. In its 2018 study, Google found that managers had dipped into these discretionary funds more often for women engineers, creating a pay gap for men in the same job category.
Although equal pay claims by men in the UK are rare, they are possible – the Equality Act 2010 is intended to protect both male and female staff against pay differences based on gender.
Do I have an equal pay claim?
Working out if you have a viable equal pay claim is not easy as the law in this area is complicated. In order to bring an equal pay claim, you must:
- be an employee or office holder
- be able to identify a real life comparator
- do equal work to that comparator
Below is a brief summary of the steps you will need to go through to formulate your claim.
- Identify someone of the opposite sex doing the same (equal) work as you. This is your comparator.
- Check that your comparator in the same employment as you.
- Identify the term or terms of your contract which compare unfavourably with your comparator.
- Consider what the explanation(s) for the difference might be and whether these are genuinely not sex related (either directly or indirectly)?
Looking at each of those requirements in turn:
- It is crucial that your comparator is the opposite sex to you. The phrase the “same work” is slightly misleading as your comparator does not have to be doing exactly the same job as you. You need only show that they are doing equal work to you and this may be an entirely different role to yours but, which is equally valued by your employer. Equal work may mean:
- the same (or broadly similar) work,
- work of equal value; or
- work rated as equivalent (following a formal job evaluation study)
- A comparator is someone who is in the same employment as you, which means they are employed by:
- the same employer or an associated employer (such as a parent company); and
- work at the same establishment as you, or
- work at a different establishment which has common terms attributable to a single source which has the power to rectify the difference (for example a nationally negotiated collective agreement).
A comparator does not have to be working in the job at the same time as you they could be a predecessor to your current job.
- A The law guarantees equality in respect of all contractual terms such as company car or holiday entitlements, not just basic pay. Each term of the contract will be considered separately, it is irrelevant whether your overall package is equal (or even better) when considered as a whole
- An employer has a defence to an equal pay claim if it can demonstrate that any difference in pay was down to a material factor that was nothing to do with the sex of the employee, in any way. Genuine reasons why an employer may need to pay one person more than another include:
- differences in the experience, seniority, qualifications or skills of the individuals,
- differences in hours of work or place of work (e.g. a London weighting),
- having additional duties or greater responsibility,
- market forces such as the scarcity of suitable candidates or needing to recruit someone at very short notice.
Bringing a claim
Claims for equal pay can be brought in the employment tribunal (without having to pay a fee) or in the civil courts (where a fee is payable). Claims can be brought in the employment tribunal while still employed or within six months from the end of employment. Claims can be brought in the courts up to six years after employment has ended.
It is thankfully rare to find blatant cases of unequal pay, where women and men (or vice versa) doing exactly the same job are paid differently – although there appear to have been some recent examples regarding BBC TV presenters. However, it is much more common to find that women and men doing work of equal value suffer pay disparity. Often this is for historical reasons with the inequality hidden because it’s not obvious and people don’t realise they can compare themselves with others not doing exactly the same job.
In the public sector many female employees who worked as dinner ladies and in other traditionally female roles successfully argued that they did work of equal value to roles done by men such as refuse collecting. Birmingham City Council and others had to pay out millions of pounds as a result.
Currently there are various claims going through the employment tribunals against supermarkets. Tesco and Asda face claims by predominantly female store workers who are comparing themselves with predominantly male warehouse staff. This trend looks set to continue in the private sector.
How can we help you?
If you would like to know more about equal pay or you think you may not be receiving equal pay (or other contractual terms), talk to our employment law specialists today. We’ll help you figure out if you have a claim and how best to take it forward.
These contents are for information only and do not constitute legal advice. You should take specific professional advice in respect of your personal circumstances before acting on any of the information given.