Our latest fact sheet looks at equal pay. Our series of factsheets is intended to cover topics which individuals may find of particular interest or, which are universally relevant but tricky to navigate.  Our aim is to give basic facts about the legal concepts involved and to debunk the technicalities, using plain English.

What does equal pay mean?

Under the Equality Act 2010 men and women have the right to equal pay for equal work and it is unlawful for an employer to pay men and women differently for doing equal work.

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.

Do I have an equal pay claim?

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

Equal work means:

  • 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.

Employer’s defence

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.

Summary

  1. Identify someone of the opposite sex doing the same work as you. This is your comparator.
  2. Check that your comparator in the same employment as you (see above).
  3. Identify the term or terms of your contract which compare unfavourably with your comparator.
  4. Consider what the explanation(s) for the difference might be and whether these are genuinely not sex related (either directly or indirectly)?

Examples

It is thankfully rare to find blatant cases of unequal pay, where women and men 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 do 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 doing different jobs.

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.

Disclaimer

The content of this fact sheet is for information only and does not constitute legal advice. You should take specific professional advice in respect of your specific circumstances before acting on any of the information given.

 

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