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Equal Pay

Despite over 38 years of equal pay legislation, and despite the growth in protection afforded to all groups by the anti-discrimination legislation, nevertheless there continues to be a disparity in the rates at which different workers are paid for what amounts to the same, or a broadly similar, job. This section looks at equal pay legislation and the steps which employees should take to ensure that they receive the same pay as comparable colleagues and at the issues which employers should consider when planning their pay strategies and scales.

The meaning of equal pay

The Equal Pay Act 1970 states that employees should be paid the same wage when they undertake:

  • the same or broadly similar work – often referred to as like work;
  • work that is rated as being equivalent under an employer’s job evaluation scheme;
  • work that is of equal value; in other words work which, although different is nevertheless comparable in terms of the effort, skill, responsibility and decision-making abilities which are required or work which would have been rated as equivalent had there been a job evaluation scheme.

For the purposes of the Act pay includes wages, salaries, pensions and other benefits including holidays, subsidies, contractual bonuses. Also, the law applies equally to all employees including part-time, casual or temporary and fixed-term contract workers and applies irrespective of the age of the workers.

Although introduced primarily to ensure that women were paid the same as men, the legislation applies equally to men. There is a substantial overlap with provisions contained in the Sex Discrimination Act. However, where the difference in pay is in relation to people of the same sex, but from a different minority group – for example where those of a different ethnic or racial background are being paid differently from those not of that background – then the appropriate anti-discrimination legislation should be relied upon.

If you think that you might have a claim in relation to equal pay please contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.

Claiming equal pay

If an employee believes that they are not receiving the right pay for the work which they are doing then they need to take various steps to establish a claim and ultimately may be able to take a claim to the employment tribunal. Before they can make a claim to the Tribunal, however, they must raise the matter with their employer.

There are essentially three steps to the process:

  • establishing that someone of the opposite sex is paid more for the same, broadly similar, equivalent, or equal value work – this person is known as a “comparator” and must be employed in the same establishment and MUST be of the opposite sex;
  • comparing the terms and conditions of the comparator with their own
  • finding out whether there is a reason why the other person is being paid more.

In order to establish these facts an employee has the right to ask the employer to provide information so that they can work out whether they are receiving equal pay and if not, why not. This is done by means of an equal pay questionnaire. Further information about, and an example of, this questionnaire can be downloaded from the Government’s Equalities web site.

If the matter then progresses on to an Employment Tribunal, that Tribunal may use the information contained in the questionnaire. That information includes:

  • a statement as to why the employee believes they are not receiving equal pay
  • a statement as to who they believe their comparators to be;
  • factual questions intended to find out whether the employee is receiving less pay than their comparator and, if so, why;
  • a question to ascertain whether the employer accepts that the comparators are doing equal work or work of equal value; and
  • such other additional questions as the employee thinks are appropriate.

The questionnaire needs to be responded to by the employer within 8 weeks of receiving it. As with other discrimination questionnaires, the employer is not under a statutory duty to answer the questions but if the employer refuses then the Employment Tribunal can draw inferences from this refusal at a alter date.

The use of the questionnaire might, however, place the employer in a difficult position so far as confidentiality is concerned. Because they are required to answer the questionnaire as completely as possible, they may feel that they are being asked to disclose confidential information about another employee’s pay and terms. Information which the other employee might not want to be disclosed. Therefore, employers will need to give careful consideration to the amount of information which they feel it appropriate to reveal and may need to try and answer questions in general terms rather than giving details of the salaries of specific people. If, however the matter proceeds to a tribunal then that tribunal may in any event order the employer to disclose the information in the interests of justice.

Employers also need to bear in mind the requirements of the Data Protection Act 1998 when disclosing information, and in particular should not disclose information relating to ethnic origin or medical details. If in doubt employers should seek assistance from the office of the Information Commissioner (www.informationcommissioner.gov.uk)

Employees should note that differences in pay which relate to additional responsibility or payment for unsocial hours are permitted, providing those differences are not based on the sex of the worker.
There are specific time limits in which a claim can be made to an Employment Tribunal and they can only be made after the employer’s internal complaints procedure has been used and after the employer has been given the opportunity to respond. It is essential, therefore, that employees seek advice as a matter of urgency. Employmentlawhelpwill be happy to assist you if you believe that you may not be receiving equal pay.

Employers and employees may wish to consider the Code of Practice on Equal Pay produced by the Government

The Employer’s Defence

In certain circumstances, employers may be able to show that there was a justification for the difference in pay between an employee and their comparator. This is known as the ‘genuine material factor’ and the employer must prove that this factor was the reason for the difference and continues to be the reason now. It should be noted that an employer is not allowed to use, however, a material factor which would amount to indirect discrimination. Thus, for example, if the employer paid less to workers who only worked part-time and the majority of those part-time workers were women.

Defences which an employer could use, might include:

  • the two employees are undertaking different work,
  • the comparator employee has greater responsibility or works during unsocial hours,
  • market forces apply – for example there is a genuine skills shortage in relation to one particular type of work resulting in higher wages needing to be paid than in a job with comparable skills,
  • pay increments – increases in pay given to reflect career progression, loyalty or genuine improvement,
  • pay protection – where someone is moved to a different job but assured that they will not need to incur a pay cut,
  • a job evaluation scheme has been undertaken and this has given the comparator a higher rating – a valid defence provided that the evaluation itself is not shown to be unfair,
  • qualifications and skills - an employer would need to be able to show that these were relevant factors.

Making a claim to the employment tribunal

A complaint is made on form ET1 which you must send to the Regional Office of Employment Tribunals. You can obtain a form ET1 from a number of places including Jobcentres, the local employment tribunal or online at the Employment Tribunal web site. The complaint must be made within three months, less one day, from the date upon which the discrimination first happened or, if you have gone through the grievance procedure, six months less one day. Note, however, that an employer must be given at least one month to sort out your grievance before you can proceed to the Employment Tribunal so it is vital that you complain to your employer and start the grievance process as soon as possible.

If an employee’s equal pay claim is successful then not only will their pay for the future be adjusted but also they may be awarded back pay for the period during which the employee received an unequal amount. In normal cases this will be limited to six years before the day the claim is made with the employment tribunal.

However, if the employer deliberately conceals relevant facts preventing a claim from being brought, or the employee is under 18 or the employee has a disability such that they may not have understood the position, then back pay can be awarded to the date on which the unequal pay first started, provided that the claim is lodged within six months of the employee discovering it ceasing to be under a disability.

For more information on taking matters to the Employment Tribunal, including the kind of remedies which are available to you, please see elsewhere on this web site or contact employmentlawhelp on 0844 8044 800 and we will be pleased to help you.