Employment: Equal Pay Act

Equal Pay

Employment: Equal Pay Act

What does the right to equal pay mean?

The principle of equal pay for men and women is regulated by the Equality Act 2010. Where you are employed under a contract of service, apprenticeship or otherwise to work personally, you may be entitled to terms which are no less favourable than a comparator of the other gender who is in the same employment. This will be the case where the comparator is employed to do “equal work” which is either like work, work rated as equivalent, or work of equal value. This applies not only to pay, but to certain benefits as well.

Do I have a case?

A woman who suspects that a male colleague who is performing equal work is receiving more favourable terms than her may have an equal pay claim (and vice versa). However, an employer may be able to justify the distinction because of a “material factor” – for example, seniority, length of service, or different levels on a pay scale.

As with any possible legal claim, it is important to gather information that supports your position. You could ask your colleagues about their terms to identify a pay disparity. Alternatively, you could ask your employer directly. Historically, you could submit a questionnaire to your employer to help determine whether you had a claim, by asking questions about the comparators you had identified, how pay was determined and whether the job descriptions of the comparators provided any explanation for a difference in pay. Whilst no longer a statutory requirement, equal pay questionnaires remain a useful tool in determining whether any equal pay claim has good prospects of success. ACAS provides helpful guidance regarding what you should ask here.

Another useful way of gathering information is to look at your employer’s advertisements for the same or similar roles.

Where do I bring a claim and when should I bring it?

Claims for equal pay can be brought in either the Employment Tribunal or the civil courts. The Employment Tribunal is the most popular choice given it is a no-fee regime in contrast to the civil courts. However, time limits differ in that, usually, you have six months from the date your employment comes to an end to bring a claim in the Employment Tribunal. Claims in the civils courts must be brought within six years. You can also bring a claim at any time whilst you remain in the role for which you think you are not receiving equal pay.

It is always best to seek legal advice as early as possible to ensure that you do not lose the opportunity to bring your claim due to a limitation issue. Unlike other employment-related claims, there is little room to extend time in equal pay claims.

What do I have to prove on order to win an equal pay claim?

To succeed in an equal pay claim, you need to establish the following:

■ your comparator is in the same employment;

■ you are performing like work, work rated as equivalent or work of equal value to that of your comparator;

■ your comparator has a term in his or her contract that is more favourable than the equivalent term (if any) in yours.

Once the above has been established, if your employer is relying on a “material factor” defence to justify the inequality, they must then show:

■ the reason for the less favourable treatment;

■ that this reason is material; and

■ that the reason is not because of the difference of sex (direct discrimination).

Thereafter, you may still have an argument that the factor has a disparate adverse impact on women (indirect discrimination), and if you can prove this disparity, your employer must then objectively justify it, in that it is a proportionate means of achieving a legitimate aim.

Should I bring a claim?

Many are still apprehensive about the stigma attached to litigation against your employer, however, there is a notable shift towards advocating for transparency regarding pay and equal pay rights for women. If you are concerned that you may be treated differently if you raise concerns about your pay or because you intend to exercise your rights to bring an equal pay claim, you should take legal advice early regarding your potential claims and those arising out of any detrimental treatment.

If you are successful, the Employment Tribunal or court can make a declaration regarding your rights, and they can require your employer to pay you any arrears of pay due (up to six years). For this reason, it is certainly worth considering and there are specialist lawyers who are able to guide and support you through the process. ■

Blair Wassman

Blair Wassman

Associate BDBF Employment Law