Equal Pay Solicitors
Equal pay ensures that both women and men within the same employment receive equal pay for equal work. Equal pay claims can be complicated and costly. Therefore, advice should be sought from specialist solicitors in this area.
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What is equal pay?
The concept of pay normally relates to some tangible benefit, whether expressed in financial terms or otherwise. It does not extend to non-economic loss (e.g. injury to feelings). It can include occupational pension schemes, severance payments, and one-off payments made by employers in recognition of special events.
The Equality Act 2010 (EqA) incorporates an equality clause into an employee’s contract, which applies equally for the benefit of women and men. Any term in an employment contract that seeks to exclude or limit any provision of the EqA is unenforceable.
When does equal pay apply?
Whether you are an employee or a worker (engaged under a contract personally to execute work or labour) employed in Great Britain you are legally protected. You have rights whether you are a woman or a man and whatever your length of service.
An equality clause will be implied into your employment contract where you are employed doing equal work which will be:
- like work with a wo/man in the same employment (i.e. work that is the same or broadly similar in nature)
- work rated as equivalent with that of a wo/man in the same employment (i.e. different but graded as equivalent under a job evaluation scheme)
- work of equal value to that of a wo/man in the same employment (i.e. different but equal in terms of demands such as effort, skill and decision-making).
If one of the above conditions applies to you, the equality clause will modify your contract of employment to ensure that it is no less favourable than an employee of the opposite sex with a similar contract.
You cannot use the equality clause to claim that you are entitled to be paid more than an employee of the opposite sex, as it only applies to less favourable terms.
Who is the permitted comparator for equal pay?
The comparator must be an actual fe/male and not a hypothetical fe/male. Both you and the fe/male comparator must be employed at the same time.
There must be a common employer (or an associated employer) and either a common workplace or, where the fe/male comparator is at a different workplace, common terms and conditions of employment, which means that the terms and conditions must be substantially comparable on a broad basis.
You can compare yourself with a fe/male comparator employed at the same time or either a fe/male predecessor or successor.
European law allows a comparator to be made between employees who do not work for the same employer but only where the differences in pay are attributable to a common source and where a single body is responsible for and capable or remedying.
What is like work?
In deciding whether or not the work you do and that of your comparator is the same or broadly similar there has to be a consideration of the type of work involved and the skill and knowledge required to do it.
The relevant test is to examine what you and your comparator do in practice. It is irrelevant that the nature of the work is defined differently in the employment contract or job description if there is no real difference in what you do in practice.
When considering like work a 2-stage test must be applied:
- whether or not the work you do is the same or broadly similar to the work your comparator does
- whether the differences between the work you do are of any practical importance in relation to terms and conditions of employment. If the differences are insignificant, then you will be regarded as being employed on like work for the purposes of the EqA.
You must prove that you do the same work or work of a broadly similar nature. Conversely, your employer must show that the differences in terms and conditions of employment have practical importance.
What is work rated as equivalent?
Under the EqA, you will be regarded as being employed on work of equivalent value to your comparator if your job has been given equal value under a job evaluation scheme to your comparator. The scheme is adequate if it is analytical and completed, it does not have to be acted upon by your employer.
For you to rely on a job evaluation scheme to make an equal pay claim, the scheme must be a valid one. A valid scheme is one that has been accepted as a valid scheme by the parties to it.
Under the EqA, you can also make an equal pay claim on the grounds that your work is rated as equivalent if your job would have been given equal value with that of a member of the opposite sex but for the fact that the job evaluation scheme was discriminatory.
What is work of equal value?
The key point about equal value is that jobs, which at first sight may be very different, can be of equal value when analysed in terms of the demands made on an employee. The key is not to assume that jobs that are of different types (e.g. manual and administrative) cannot be of equal value.
Comparing jobs based on equal value means jobs that are entirely different in their nature can be used as the basis for an equal pay claim. Job comparisons can be made both within a particular pay or grading structure and between different structures or departments. Equal value is likely to be relevant where men and women are in the same employment but do different types of work.
You can only bring a claim for equal pay on the ground that your work is of equal value to your comparator provided that your chosen comparator is not employed on like work or work rated as equivalent.
You will also effectively be prevented from bringing an equal value claim where your work and that of your comparator have been given different values under a valid non-discriminatory job evaluation scheme.
You must demonstrate that you have reasonable grounds for claiming that your work is of equal value. If your employer seeks to defend an employment tribunal claim, a tribunal will either commission an independent expert who will evaluate the jobs, and the tribunal will make a decision based on this. Alternatively, a tribunal will determine whether the comparable jobs are of equal value without first obtaining a report where that decision is supported by a job evaluation study.
The parties are free to commission their own independent reports.
What is the difference between equal pay discrimination and sex discrimination?
If you receive less pay because of your sex, this will amount to direct sex discrimination and not equal pay.
Please see our page on sex discrimination.
What is an employer’s defence to an equal pay claim?
If you can establish that you have been paid less than a person of the opposite sex employed on like work, work rated as equivalent, or work of equal value, there is a presumption of discrimination.
Once there is a presumption of discrimination, your employer will have a defence to an equal pay claim if it can establish that the difference in pay is due to a genuine material factor other than sex.
The requirement of genuineness is satisfied if your employer’s purported reason is not a sham or a pretence (e.g. extra pay for long service or additional qualifications could be justified).
Your employer’s explanation for a difference in pay will constitute a material factor if it is significant and causally relevant.
A difference in pay which is related to economic factors affecting the running of an employer’s business or factors related to administrative efficiency will be a material factor.
Even if your employer can establish a material factor to justify the difference in pay, the defence will not succeed if the material factor is influenced by discrimination.
What is victimisation?
Victimisation occurs where you are treated less favourably than another person whose circumstances are the same because you:
- brought claim under the EqA
- gave evidence or information in connection with a claim under the EqA
- did any other thing for the purposes of or in connection with the EqA
- alleged that your employer or another person has committed an act that contravenes the EqA.
Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.
What remedies are available for equal pay?
If you are an employee who believes your employer has paid you less than a comparator of the opposite sex you can bring an employment tribunal claim.
Tribunals can award unlimited compensation for arrears of pay or damages. Normally you will not be entitled to be awarded any payment in respect of a time earlier than 6 years before the date on which the claim commenced. However, in certain circumstances the period can be longer.
How long do you have to bring an employment tribunal claim?
An employment tribunal claim under the EqA relating to equal pay must be received by a tribunal within 6 months (i.e. 6 months less 1 day) after the qualifying date. The time limit is a strict one and there is no discretion to extend time.
Calculating the correct qualifying date is not only necessary to ensure that an employment tribunal has jurisdiction to hear a claim, but can have significant consequences on the compensation recovered if you are successful.
The qualifying date is dependent on the type of case being pursued and there are 4 different types:
- concealment case – this is where your employer deliberately concealed a qualifying fact
- disability case – this is where you had a disability at the relevant time
- stable employment case – this is where the claim relates to a period during which a stable employment relationship exists between you and your employer, which can include successive contracts. The time limit in this case is 6 months after the day on which the stable employment relationship ended
- standard case – this is a case that does not fall within the definition of the 3 above. The qualifying date is the date falling 6 months after the last day on which you were employed.
The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.
Please see Acas early conciliation.
Contact our specialist equal pay solicitors today
IBB Law’s employment law specialists represent individuals at all levels no matter the size or sector of the company. If you feel that you have been subjected to unlawful discrimination, we can offer fast, reliable guidance on what to do.
Contact our specialist equal pay solicitors today on 03456 381381 or email your details to email@example.com.
The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.