What is equal pay law?

Equal pay is covered in both EU documentation and UK Law. You might hear reference to the UK Equality Act 2010 or Article 157 of the EU Treaty in any equal pay debate. The Equality Act provides the opportunity to challenge when men and women are doing the same job but pay and other conditions are different. The EU legislation is not legally binding but can prove useful as evidence in an equal pay case. The important thing to realise is that equal pay law is neither simple nor straightforward. It is our job to assist your understanding and provide whatever extra help you need.

Confirming a comparator

Success in equal pay cases hinges on the availability and quality of a comparator. A comparator is someone whose job can be compared to your own. Once a comparator has been identified the comparison is used as evidence in support of your claim. There are several rules concerning any comparator:

• They must be of the opposite sex.
• You must both be employed by the same employer. The comparator might work in a different building or for an associate part of the business, but you must have been employed at the same time.
• If your terms and conditions are different to your comparator’s you may still be allowed to claim. To do so you must both be employed by a single employer who decides pay. This is called a single source.
• If no comparator is available then claims can still be made due to sex discrimination. This might happen if you are doing the same job as your predecessor, but they were earning more money.

Understanding the process

There are four broad stages in an equal pay claim. The comparator is all-important and is the focus in each stage of the claim:

1. Identify the comparator.
2. Prove the comparator.
3. Compare the comparator.
4. Allow your employer opportunity to dispute the comparator.

Steps 1 and 2 are explained in the section above. Our TOOL can give you some guidance in identifying a suitable comparator. Steps 3 and 4 are largely outside your control. The comparison in step 3 will most likely be done by whoever represents you during your case. Step 4 will be attempted by your employer or whoever represents them.

Equal pay in three ways

You can claim for equal pay in one of three ways:

1. Claiming ‘like work’
2. Claiming ‘equivalent work’
3. Claiming ‘work of equal value’

LIKE WORK

This type of claim involves a third party examining your job and your comparator’s job. It must be proven that the two jobs are either the same or broadly similar. Any differences between the jobs must be minor or the ruling is likely to go against you. Each job description will be assessed in terms of responsibilities, tasks and other duties.

EQUIVALENT WORK

You might already know that your employer has completed a job evaluation process within the organisation. If you aren’t sure then it is worth finding out. Job evaluation analyses jobs and each one is given a rating. In organisations which have rated jobs through job evaluation, you will be able to contrast your job’s rating and your comparator’s job rating. Should they be the same then you can make a claim for ‘equivalent work.’

WORK OF EQUAL VALUE

This is similar to ‘equivalent work’ but can only be called for when an organisation has not done job evaluation. Jobs are still rated but only your job and your comparator’s job will be analysed. This is usually done by an independent expert who will report back to the court or tribunal.

What can be compared?

All of your terms and conditions of employment can be analysed including:

• Pay;
• Overtime;
• Bonuses;
• Sick Pay;
• Holiday Pay;
• Redundancy Payments;
• Pensions

Your employer’s defence

Once you have presented a comparator in your case then the focus switches to your employer. Their aim will be to convince a court or tribunal that the differences you have identified are nothing to do with gender. More common defences are:

• That there is a skills shortage in the organisation. If your comparator fills this skills gap then there is possible justification for a difference in pay terms.
• Another defence is something called ‘red circling’. This happens when someone has been demoted or their job downgraded. Pay might be maintained at a higher level for a certain period of time to help that person adjust their finances.
• Differences can be explained by geography (e.g. the relative higher cost of living in London as opposed to the north).
• They might also argue that the comparator is not valid because that job is of greater value.

Approaching your employer

You are entitled to write to your employer if you think you have a case for equal pay. They are obliged to provide any details about your pay and the reasons for possible inequality. A standard form of enquiry is to use the Equal Pay Questionnaire. Pay Justice staff can help you to fill this in.

It is common in some organisations for employers to discourage or even prohibit staff from talking to each other about pay. The Equality Act 2010 made this practice (known as pay secrecy) forbidden. You may not be able to talk to a competitor about pay conditions, but internal discussions cannot be restricted under law.

What are the time limits for making a claim?

You must claim within six months of a contract or job ending. The exception to this is in circumstances where you have had multiple temporary or short term contracts at the same employer. In this case the six months may begin on the date your last contract ended. If you have transferred jobs within the same organisation then the six month period begins on the date you moved. This is also the case for redeployment. It is important to seek advice on the precise status of your contract.