Rights are afforded to workers under the equal pay provisions of the Equality Act 2010. The rights apply in England, Scotland and Wales only Claims for equal pay can be brought by both men and women; therefore the references in this leaflet to women apply equally to men, and vice versa.
Equal pay – what it means
Claims can deal with wages and salaries. But the law is also concerned with equality of other terms and conditions under the contract of employment. It therefore covers contractual bonuses, holiday entitlement, sick pay, pensions, share options, company car and petrol allowances, accommodation and a whole list of other benefits provided for in the contract.
Equal pay between men and women
There is no right to equal pay between colleagues of the same sex. An aggrieved employee must be able to compare herself with an employee of the opposite sex. Differences in pay and contractual terms between colleagues of the same sex may be unfair, but there is not necessarily any legal remedy – and certainly no remedy under the Equality Act 2010.
The employee must be able to compare herself to an actual male colleague. But the comparator need not be someone employed at the same time as the employee: they may be a predecessor or even a successor. The comparator does not have to know that they have been selected, nor do they need to
The right to equal pay between men and women within the same employment arises if they do “equal work”, e.g. that the work they both do is either ‘like work’, ‘work rated as equivalent’ or ‘work of equal value’.
Employees do ‘like work’ where their work is broadly similar and where there is no practical difference, or no important difference, in the tasks that they perform. In practice, this is usually the easiest type of case to pursue – e.g. a male and a female bus driver who both drive buses for the same company. It is for the employee to prove that the work that she does is broadly similar, and for the employer to prove the existence of ‘differences of practical importance’.
Work rated as equivalent
Only relevant where the employer has undertaken a Job Evaluation Scheme (‘JES’). JES are normally carried out to rank jobs within grades or a pay structure. They are often technical, complex exercises. Generally employees will know whether or not a JES has been carried out.
An employee can bring a claim where the JES rates her job and her comparator’s job as ‘equivalent’ (for example, both jobs are rated within band (C), but she is not receiving the same rate of pay or other
Alternatively, a claim can be brought where the JES would have rated the jobs as equivalent but the Scheme itself turns out to have been discriminatory on the grounds of sex.
In practice, very few claims succeed using this route. Most employers pay the same rate of pay for jobs in the same band, once a JES has been undertaken.
Work of equal value
These claims are probably the most complex type of claims for equal pay. Here it may appear that the two employees do completely different jobs. The issue is whether it can be said that the work done by each is equally as valuable.
The woman has to show that her job requires the same levels of skill, knowledge, effort and responsibility.
Real life examples of successful comparisons include:
• A supermarket checkout operative and a warehouse operative.
• A school nurse and a school technician.
• A school classroom assistant and a lorry driver.
• A canteen worker and a surface worker in a coal mine.
The procedures in these cases are complex and tend to be long-winded, and if multiple claims are made against the same organisation the litigation can last for many years.
If the employee can show that she is not being paid equally for equal work there is still the possibility that her claim will fail because the employer can establish a ‘material factor’ defence.
It is open to the employer to establish a defence on the basis that the difference in pay has nothing to do with sex.
An employer must identify the reason for the difference and satisfy the Tribunal that the reason is material (i.e. significant and relevant) and genuine. Reasons can include personal factors such as hours of work, geographical location, qualifications, experience and ‘red circling’ or external factors such as legal requirements, different collective bargaining arrangements, market forces and starting salary.
If the employer can show a material factor defence then the claim for equal pay will fail.
Equal Pay cases are complex and can be lengthy. We have worked on many such claims over the years and can help you navigate these difficulties with confidence.
For more information on equal pay and other Employment Rights, please call our Employment Rights team on 033 3344 9603.