The concept of equal pay for equal work has a long history in the UK. It is over 50 years since sewing machinists at Ford’s Dagenham plant halted production, walked out and changed the lives of working women. The machinists were informed their jobs were considered ‘less skilled’, than men. That inequality was reflected in pay and women were receiving 15% less than the rate given to men, giving rise to an equal pay dispute.
Now the law protects women but equal pay disputes continue. From actors to sportspeople to BBC presenters, equal pay disputes have dominated the news in recent times. Since April 2017, all UK companies with more than 250 employees are legally required to publish their gender pay gap data. Although it should be remembered that the gender pay gap, and equal pay, are different concepts. If you require advice on gender pay gap reporting, please contact one of our experts.
The key concept is one of comparison, between the claimant, A, and a comparator, B. If A is a woman then B must be a man. Under the Equality Act 2010 the terms of the employment contract contains a sex equality clause, as such the purpose of an equal pay claim is to improve A’s terms under this clause to the level of B’s terms.
A and B must be employed by the same employer and undertake work that is equal. There are three ways in which this work may be deemed to be equal:
- Work rated as equivalent – This applies where a job evaluation study rates A and B’s jobs as being equivalent.
- Like work – This applies where the work undertaken by A and B is of the same or a broadly similar nature.
- Work of equal value – This applies where the effort, skill and demand required of people undertaking different jobs is the determined to be equal. This is a determination only a Tribunal or court can make after a detailed process of information gathering.
If A can establish that their work is equal, the burden is then on the employer to show that any inequality in pay is for a reason other than related to sex. An employer must show a reason which is genuine (not a sham) that the disparity in pay that has nothing to do with gender.
Pay is not simply defined as basic pay but also incorporates all elements such as pay, pension, maternity pay, redundancy pay, severance pay, benefits and piecework.
If an employee considers a bonus structure is also unfair, this may be brought under an equal pay claim, or if the bonus scheme is contractual, this may be brought as a sex discrimination claim . A breach of an equality clause may also give rise to a constructive dismissal claim.
How an employee can succeed in an equal pay claim:
An employee must show that they are being paid less than a comparator who undertakes equal work and that the difference is because of their sex.
How an employer can defend an equal pay claim:
An employer can defend a claim for equal pay by either showing that the work is not ‘equal’ or that there is material factor, not related to sex, which explains the difference in pay.
How much can be claimed?
Equal pay claims have the potential to be of significant value as pay can be backdated up to six years prior to bringing a claim.
General time limit
You can bring a claim for equal pay at any time during employment under the contract which is the subject of your complaint or within six months of the end of your employment. After this time, claims can be brought in the ordinary courts within six years of the end of employment. Please note that a substantial change to the terms or conditions of employment this could start time limits running. You should take advice from our experts if you have concerns regarding time limits.
Equal pay claims can be complex, our Head of Employment Law,Colin Davidson, has extensive experience advising on concerns over equal pay, having been involved in mass litigation over equal pay disputes in Scotland. These concerned thousands of underpaid council workers which achieved favourable results and widespread media attention. He has since advised a number of local and London city workers on negotiating and litigating equal pay claims.