Equal pay law provides a way of ensuring that both men and women receive the same pay and contractual benefits for doing comparable work. The following guide for employees examines the legal basis of equal pay claims, from what these types of claim can include and what you will need to prove, to what you can expect to be awarded if your claim is upheld.
What is an equal pay claim?
By law, both men and women must get equal pay for doing ‘equal work’. This is work that is classed as the same, similar, equivalent or of equal value. This means that you must not get paid less compared to someone of the opposite sex doing equal work for the same employer. If you do get less pay for doing the same or similar work, or work of equal value, you may have the basis of a potential equal pay claim under the provisions of the Equality Act 2010.
The law on equal pay is designed to ensure that all forms of pay are determined without sex discrimination and bias. This includes basic salary and wages, overtime rates, bonuses, commission, allowances, holiday pay, redundancy pay and pensions etc. However, the equal pay provisions are not confined to terms directly related to remuneration. The legislation encompasses all contractual terms and conditions, including annual leave entitlement, fringe benefits, like a company car or gym membership, or even things like performance targets.
As such, if you feel that you’re not getting equal pay or equal employment terms at work because you’re doing the same job as someone else of the opposite sex but for less pay, or on less favourable contractual terms, you might be able to make a tribunal claim.
Under the 2010 Act, it is also possible to bring a claim for sex discrimination if you’ve been treated unfairly at work in terms of pay or other benefits because of your gender, even if you are unable to show that your pay or conditions are worse than someone else’s.
Who can bring an equal pay claim?
Under the 2010 Act, you have a right to equal pay and conditions if you are:
- An employee
- A worker
- An apprentice
- An agency worker
- A self-employed person who has been hired to personally do the work.
Equal pay legislation covers both male and female workers. The law also applies regardless of how long you’ve worked for your employer, and whether you’re working under a full-time, part-time or temporary contract of employment. However, to be eligible to bring an equal pay claim, you must be able to show that there’s someone else at work of the opposite sex getting more money, or benefitting from better terms and conditions, for equal work.
By law, ‘equal work’ counts as either:
- Like work, where the job and skills are the same or broadly similar, and any differences are not of practical importance;
- Work rated as equivalent, usually applying a fair job evaluation;
- Work of equal value, where the work isn’t similar but it’s of equal value because of the demands made on the worker in terms of effort, skill and decision-making.
To help establish if you have an equal pay claim, you should check your pay and how this is made up so you can compare it with others, for example, how much basic pay, overtime or commission you get. You should also check the pay and contractual benefits for people of the opposite sex doing work you think is ‘equal work’. If you suspect inequality of pay on gender grounds, you’re allowed to ask others at work how much they earn or what benefits they get, although it’s entirely up to them to decide whether or not they want to disclose this to you.
If you think you have a potential equal pay case you can also ask your employer for general information about other people’s pay and contractual benefits, although your employer can’t share personal details about other employees because of data protection law. However, you can ask your employer for information about how much people of the opposite sex earn who do the same or broadly similar work as you, the terms and conditions under which they work, together with the reasons for any differences in pay and benefits, if there are any.
If you do decide to approach your employer about any concerns over equal pay and other employment terms, it’s always a good idea to raise your questions in writing and ask your employer to provide a written response. The organisation that you work for may also have an equal pay policy in place, setting out how matters of pay and other terms and conditions are approached, and how any complaints and disputes on equal pay will be dealt with.
When might differences in pay be allowed?
If you are not being paid equally for the same or similar work, or work of equal value, your employer will be breaking the law, unless they can show that there’s a material reason for the difference which doesn’t discriminate against you on the basis of your sex.
This means that differences in pay and other terms and conditions might be permitted in certain circumstances, even where you are able to identify a potential comparator at work who is better paid than you or who works under more favourable terms. This is because there may be a reason for any pay or other contractual differences that has nothing to do with your sex.
It might be possible, for example, for your employer to argue that it was necessary to pay your comparator more because of a skill shortage, provided they can prove difficulties in recruiting and retaining staff to do the job being done by the higher-paid person. Other examples of material factors could include things like someone working unsocial hours or night shifts, or even geographical differences, typically to reflect a higher cost of living in London.
Whether the ‘material factor’ defence is made out will depend on the specific circumstances in each case. However, if your employer is unable to show that the reason you’ve been receiving less pay or other less favourable terms in your contract is due to a material factor which has nothing to do with your sex, your claim for equal pay should succeed.
How do you bring an equal pay claim?
If you feel that you’re not getting equal pay at work you should talk to your employer to try and resolve the issue. If the matter cannot be resolved informally, you may wish to raise a formal grievance in writing using your employer’s internal grievance process. If you’ve any evidence in support of your complaint, it’s a good idea to share this with your employer, although you do not need to specifically name any comparator at this stage.
In cases where the matter cannot be resolved internally, you’ll need to consider issuing a tribunal claim. Still, it’s important to follow any grievance procedure first, as any unreasonable failure to do so may be taken into account by the tribunal when assessing damages.
You will also be required to inform ACAS that you intend to bring a claim, following which you’ll be invited to participate in the ACAS early conciliation procedure. There’s no strict requirement to take part in early conciliation, although it will provide you and your employer with another opportunity to resolve the matter without recourse to legal proceedings.
If you no longer work for your employer an equal pay claim must usually be lodged with the tribunal within six months of the date after the end your employment, although a claim in the civil courts can be issued any time within a period of six years.
What will you need to prove in an equal pay claim?
To be able to bring an equal pay claim, you’ll need to show that either your pay, or contractual terms and conditions, are worse than someone else’s because of your sex. This means that you must be able to prove that you’re not getting equal pay or benefits compared to someone who is of the opposite sex, does ‘equal work’ and works for the same employer.
It’s up to you to decide who you want to identify as your comparator. This can be someone who currently works for your employer or who used to work for your employer, including your predecessor. You can also claim equal pay with more than one person, although this will make your claim more complicated. Your comparator doesn’t have to support your claim, or even agree with it, but at some point in the claim process you’ll have to name them. You cannot simply allege that your employer generally pays women less than men, or vice versa.
An employment tribunal will consider various factors when assessing an equal pay claim, including whether you are doing equal work compared to a comparator, as well as any differences in pay and contractual terms and conditions between you and your comparators.
If you’re able to prove that you’re receiving less pay than a valid comparator doing equal work, it’s then for your employer to show that the difference in pay and/or other terms was due to a material factor other than sex. Unless your employer can prove that there’s a non-discriminatory material factor which has resulted in the difference in pay or terms your claim will be upheld. If any material factor only accounts for part of the difference in pay or benefits, your claim for equal pay may still be upheld to the extent to which any difference is attributable to your sex.
How much is equal pay compensation?
If your equal pay claim is upheld, the employment tribunal or court may:
- Make a declaration that you’re entitled to receive the same pay and/or contractual benefits as your comparator(s);
- Order your employer to compensate you for any back pay, based on what you should’ve been paid, together with interest. The maximum timeframe for which arrears can be awarded is usually a period of six years prior to the date proceedings were commenced in the tribunal.
This means that by pursuing an equal pay claim you can achieve equality moving forwards, in addition to a potentially sizeable sum of back pay. However, this can be a very complex area of law, where every case depends on the individual circumstances, including the validity of the comparator(s) used and the reasons given by the employer for any alleged inequality.
Need assistance?
DavidsonMorris’ employment law specialists have specific experience in equal pay matters including tribunal claims. By seeking legal advice from an employment law specialist prior to issuing legal proceedings, you can explore the basis of any claim for equal pay, or even sex discrimination, and how best to approach this with your employer to maximise the chances of a positive outcome. Contact us for advice.
Equal pay claim FAQs
What is an equal pay claim?
If a person’s pay and conditions are worse than someone’s else’s of the opposite sex doing the same or similar work, or work of equal value, for the same employer, this will potentially give rise to an equal pay claim.
Is it legal to pay different wages for the same job?
By law, an employer should not pay different wages for the same or similar job, unless the reason for doing this has nothing to do with someone’s sex. Paying different wages can often give rise to an equal pay claim.
Can you be paid less for doing the same job?
People doing the same or similar job should get the same or equal pay, regardless of gender. However, you can be paid less for geographical reasons or where another person is paid more in recognition of additional skills or responsibilities.
How do I make an equal pay claim UK?
An equal pay claim can be lodged with an employment tribunal, although there is a six month time limit running from the date your employment ended. A civil court claim can also be issued if you’re out of time.
Last updated: 4 May 2021
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
