The Equality Act 2010 states that men and women are entitled to equal pay for equal work.
While pay is the most obvious issue, in fact, this right to equality extends to all terms of the employment contract.
So, if you are being paid less than someone of the opposite gender who is doing the same job as you, you may be able to make an equal pay claim or negotiate a pay rise and back-pay for the period that you were underpaid.
In what circumstances can I make an Equal Pay claim?
You need to be able to show that:
- You are paid less than someone of the opposite sex (the “comparator”).
- Who is employed to do “the same kind of work” as you; and
- There is no reason for the difference in pay other than your sex.
The comparator must be a real colleague who works for the same employer, either at the same or a similar location (where employees have the same terms and conditions as your workplace).
What does “the same kind of work” mean?
This means:
- Like work – this is where you and your comparator’s roles involve similar tasks, require similar skills and there are no practically important differences between the two jobs. You and your comparator would not be performing ‘like work’ if, for example, your comparator has additional responsibilities which justify higher pay.
- Work rated as equivalent – this is where the two roles have been rated as equal under a fair job evaluation scheme in terms of how demanding they are.
- Work of equal value – this is work which is not similar and has not been rated as equivalent, but requires the same amount of effort, skill and decision making.
Even if you and your comparator are carrying out the same kind of work, your employer may be able to justify the difference in pay if there is a non-discriminatory reason for the difference in pay. This might include, for example, length of service, geographical reasons (e.g. a ‘London weighting’), or market forces (e.g. a higher salary was offered when your colleague was recruited because it was difficult to find someone with the right skills at the time, or your colleague has more qualifications than you do). Whether or not your employer can justify paying you less than your comparator depends on your specific circumstances. Equal pay is a complex area of law and you should take early legal advice if you think that you may have a claim.
My contract of employment states that I am not allowed to discuss my pay with other employees, how can I find out if I have an Equal Pay claim?
The Equality Act 2010 states that your employer cannot stop you discussing your pay with colleagues for the purpose of identifying whether or not unlawful pay discrimination is taking place. However, if your contract does contain a ‘pay secrecy clause’, you should take care to only discuss pay with colleagues who might be able to confirm whether there is an equal pay issue. For example, if you are a woman, you should only be discussing your pay with male colleagues in the same or similar roles to yours.
How can I bring an Equal Pay claim?
An equal pay claim in the Employment Tribunal can be made at any time during the employment to which it relates, or if the employment has ended, within six months minus one day from your last day of employment. This is longer than the three-month time limit for most tribunal claims.
It is always best to obtain early professional advice, as you may significantly prejudice your position if you take steps to start a claim in the belief that you have a good case- when you don’t. It is recommended, and expected under the ACAS code of practice, that employees try to resolve matters informally with their employers, and lodge a formal grievance against employers before taking any steps to bring a claim or resign. The reason for this is that it gives your employer an opportunity to resolve the dispute. The failure to lodge a grievance before resigning also means an employment tribunal can reduce any damages you are awarded by up to 25%.
Even if you have no intention of staying with your employer, the lodging of a grievance (and the contents of it) is an important tactical consideration in relation to negotiations with your employer. There may well be the option of securing a negotiated exit with your employer, and this will depend on the circumstances you find yourself in. This is a highly tactical situation and not one that should be adopted without you being aware of the strength of your claim, including what type of settlement is possible.
It is recommended that you seek legal advice at this point (before you lodge a grievance).
What compensation is available for an Equal Pay claim?
If you are successful, the court could order back-pay for the period that you were underpaid, going back up to 6 years (if you have been underpaid for more than 6 years). The court might also order that, going forward, your pay should be equal to your comparator’s, if you continue working for your employer.
Are there any other related claims?
Equal pay issues can give rise to other claims, such as Sex Discrimination and Constructive Dismissal. However, you cannot start an Equal Pay claim if you discover a colleague of the same sex and with the same job is being paid more or less than you. This applies to both men and women.
For more information on Equal Pay or to discuss your situation at work, please contact us.
