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Bringing an Equal Pay Claim

The law is clear that all employees should receive equal pay for equal work. If you are receiving less pay than someone of the opposite sex who is doing the same work as you for the same employer, you may have a claim for equal pay.

Enforcing your rights can, however, be challenging. To bring a claim for equal pay, you will need to gather proof of the disparity and exhaust internal complaints procedures.

Gathering reliable and credible evidence of the difference can be difficult, particularly where information needs to be requested from your employer. This could involve using the grievance process to collate more information or looking to other sources of information to support your case.

In some cases, equal pay complaints can give rise to other problems such as victimisation, or adverse treatment, which can lead to additional legal issues.

You will also have to be prepared for your employer’s defence, potentially refuting the allegations and justifying any differences on lawful grounds.

 

What does the law say about equal pay rights?

Employers must give equal treatment to all workers across all terms and conditions of employment. This includes the right to equal pay between women and men in the same employment for performing ‘equal work’ and also to all other contractual terms, such as pension and bonus schemes, overtime rates, hours of work, non-monetary terms and annual leave entitlements.

The law applies to both women and men.

It covers all workers, including those who are full-time, part-time, casual or on temporary contracts, and there is no minimum service requirement. It also covers other workers with a contract to carry out work personally e.g. self-employed individuals.

The rules apply where men and women are employed for:

  • ‘Like work’ – this applies to work considered either to be the same or broadly similar
  • Work deemed to be ‘equivalent’ following a job evaluation study
  • Work that is of equal value in respect of effort, skill or decision-making

 
 

There does not need to be a specific provision for equal pay in your employment contract; it is implied automatically under the Equality Act 2010 as specific protection from sex discrimination.

 

What do I need to show to prove a pay gap?

To understand if you have a claim for equal pay, you will need to ensure you are making a comparison on the correct basis. This means assessing your pay and terms against those of a relevant comparator.

‘Comparator’ refers to an employee of the opposite sex who is working for the same employer as you, doing like work that is of equal value to the work you do.

To make a claim for equal pay, you will need to identify the ‘comparator(s)’ you will rely on to prove your case.

To qualify as same employment, both you and the comparator must be employed by the same employer or an associated employer at the same establishment, or at different establishments where common terms and conditions of employment are applicable.

The comparator could be doing the same job, or they may be doing a different job deemed to be equal work that is:

  • Like work – the comparator is doing work of the same or broadly the similar nature to yours, and any differences are not of practical importance. The determining factors will be the skills, knowledge and training requirements of the job and the nature of the work itself.
  • Work that is rated as equivalent – this is where a job evaluation study has concluded that your job and that of the comparator have been rated equivalent.
  • Work of equal value – where your work is considered of being of equal value to that of your comparator, provided it involves broadly equivalent skills, effort and decision making demands.

 
 
The comparator does not have to agree to or consent to being named, and your employer does not have a say in selecting the comparator. You can also refer to more than one comparator.

The comparator can be someone you are working with at the present time, your predecessor in the role (regardless of how long ago they held the job, although the comparison may be limited to how much they were paid on termination of their contract), or someone you used to work within the same employment prior to a TUPE transfer to the current employer. 

You can compare any or all terms of your contract against the equivalent terms in a comparator’s contract.

It may be also possible to claim for equal pay even where other elements of the pay package are more favourable than the comparator’s basic pay.

It is unlawful for your employer to prevent you from discussing and comparing contract terms with other employees in the organisation. You should prepare for your employer to defend any allegations of unequal treatment by justifying the difference on grounds other than the gender of the employee.

Take legal advice if you are concerned, there is no suitable comparator. It may be that you can rely on a hypothetical comparator to establish a claim for direct sex discrimination.

 

I think I am being paid less than a colleague of the opposite sex – what should I do?

In the first instance, you should try and approach the subject with your employer. Write to them to request the information you need to establish if you are working under less favourable terms than a comparator and if so, requesting the reasons for this. Ensure you date the letter and keep a copy.

If you are not satisfied with the response, you would usually be expected to raise a grievance procedure to give your employer a formal opportunity to hear and address your concerns.

Should this result in no resolution, you may be able to bring a tribunal claim against your employer under the Equality Act 2010. You can do this while you are still employed or for up to six months after leaving the job.

Before you can make a claim at the employment tribunal, you first have to notify ACAS of the dispute using the early conciliation service.

Taking legal advice will ensure you understand your options and follow all procedures correctly and in support of your best interests.

 

Am I entitled to make a claim for equal pay? 

If you have exhausted internal procedures and your complaint remains unresolved, you may look to take your case to the employment tribunal.

There are three ways To establish a right to equal pay under the Equality Act, you will need to show ‘like work’, ‘work rated as equivalent’ or ‘work of equal value’.

Whereas claims for ‘like work’ and ‘work rated as equivalent’ are generally handled in the same way other employment law claims, ‘work of equal value’ cases are dealt with through special tribunal procedures.

To bring a claim, the onus is on you to prove to the tribunal that you have been receiving less pay than an employee of the opposite sex in the same employment doing equal work.

Your employer may well respond with a defence that any difference is by reason of other genuine grounds and does not relate to the individuals’ sex or sex discrimination in pay. Your employer could argue that you and the comparator are not doing equal work, or that the selected comparator is not permissible or the difference in pay is due to a material factor, such as the comparator being better qualified.

If you succeed in making a claim for equal pay, a number of remedies could be available to you, including matching your pay and other contractual benefits to that of your comparator’s and compensation consisting of back pay as well as damages.

Back pay can be awarded for up to a maximum of six years from the date the tribunal claim was filed. The employment tribunal may also award interest on the compensation, and it can order the employer to carry out an equal pay audit.

You have six months to start your tribunal claim from the date of the end of your employment if you no longer work for the employer. If you are still working for the employer, the clock has not started on the time limit.

Other factors may also impact the time limit on bringing the action, such as where the employer deliberately concealed the pay inequality, or there was a TUPE transfer.

 

What if you have been victimised as a result of your complaint?

It is unlawful for an employer to subject an employee to adverse treatment because they have made an equal pay complaint. This is known as victimisation and can include overlooking the employee for promotion and training opportunities or in more serious instances, dismissing the individual.

Where an employee has been victimised, they could bring a claim under the harassment provisions of the Equality Act.

It is not only the individual making the complaint that is protected; any other employees who have been involved with or supported their claim, such as the comparator, would also be protected from victimisation and could take action against the employer.

 

Do you need assistance?

DavidsonMorris’ employment solicitors have specialist experience in equal pay claims for employees. If you believe you are being paid less than another employee of the opposite sex for the same work and for the same company, we can help.

We understand this is a highly sensitive and emotive area and that raising the issue and attempting to redress the balance can result in unease among teams and organisations where employees are carrying out similar work. Our approach is to ensure a balance between assertive enforcement of your rights while focusing on achieving a resolution and preserving the employment relationship.

We can help assess the full extent of your claim, from salary through to other contractual benefits where you may be receiving less than others doing the same work, and guide you through the complaints process, including negotiating on your behalf and managing the tribunal process should you proceed with a claim.

Equal pay claims typically present a number of difficulties for employees. We have experience of advising on selecting the appropriate ‘comparators’ within your organisation, which will be fundamental to your complaint.

We also look at non-contractual or discretionary payments, or issues such as recruitment, training, promotion, dismissal or the allocation of benefits, which would be dealt with under the sex discrimination provisions of the Equality Act 2010 rather than the equal pay rules.

In addition, we can support with enforcing your rights in relation to issues such as victimisation and adverse treatment relating to the equal pay complaint. Contact us for advice.

 

Equal pay claim FAQs

 

What does equal pay mean?

The Equality Act 2010 enshrines in law the right for men and women to be paid the same for doing the same, or equivalent, work. Equal pay is a specific form of legal protection from sex discrimination.

Can you be paid less for doing the same job?

By law, you should be paid the same as someone doing the same, or equivalent, work of equal value to you, regardless of gender. If you have concerns about being paid less than someone doing the same or a broadly similar job, take legal advice on your options.

How do I raise an equal pay claim?

If you have raised the issue with your employer through their internal complaints or grievance procedure, and you are not satisfied with the outcome, you may consider making a claim for equal pay. You will first need to notify ACAS of your intention to bring a tribunal claim before you can proceed with the litigation. An employment law specialist will be able to advise on the process to follow to make your claim.

Can a man bring an equal pay claim?

Yes, the Equal Pay Act protects both men and women against pay differences based on gender, so it is possible for men to make an equal pay claim.

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