Equal Pay

Caragh Bailey
15/12/2020
32
6 min read
Equal Pay advice from Employment Law Friend

Can you be paid less for doing the same job?

Equal pay concerns equal pay for equal work done by men and women.
If you are being paid less because of your age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex or sexual orientation, this may be discrimination.

Does the UK have equal pay?

Equal pay is protected in the UK by The Equality Act.

You can take an equal pay claim to tribunal if you are paid less for the same work than someone of the opposite sex, who:
  • Works for the same employer,
  • Works for an associated employer in the same workplace
  • Works for the same employer, or an associated employer, but at a different workplace where common terms and conditions apply. (For example, at another branch of a store).

E.U. law allows you to compare yourself to someone of the opposite sex who in not in the same role but where the different pay comes from a single source who has the power to fix the difference. For example, some nursery school employees were able to compare themselves with waste disposal collectors who worked from the same council. The council had control over the pay and grading of both sets of employees, even though they had different jobs and workplaces.

It may be possible to resolve your equal pay issue in your employer’s internal grievance procedure, or in mediation, without going to tribunal. Going to tribunal can become very expensive, click here to read our article on the unexpected costs.

I'm not getting equal pay, what can I do?


    1
    You must compare your pay to the pay of one or more members of the opposite sex, who are carrying out equal work but being paid more for it.

What does 'equal work' mean?


This person with whom you compare your pay is known as the 'comparator'. Your employer cannot influence your decision of comparator, and the comparator does not have to give their consent to being named in your claim.

How to choose your comparator:
Your comparator could be:

  • Use your own knowledge and experience of the work done by your colleagues
  • Seek advice from your trade union
  • Gain information by raising a grievance
  • Apply to the employment tribunal for the disclosure or discovery of information, including about a comparator


  • A current colleague
  • Your predecessor (compare their rate of pay at the time their employment ended)
  • Someone who was a colleague before the sale of the business, where TUPE regulations apply.

Any part of your contract of employment which tries to stop you or your colleagues discussing your pay, is unenforceable for the purpose of finding differences in pay linked to any protected characteristic.

    2
    Lodge your claim with the employment tribunal.
Time Limits
You have 6 months, from the end of your employment, to lodge a claim with the employment tribunal, except in some cases.

The first step of any employment tribunal is to notify Acas, who will offer you early conciliation to try and reach a settlement agreement outside of tribunal. you can accept or refuse this, and if you refuse or are unable to reach a settlement agreement, they will issue you with an ET1 form which you then submit to the employment tribunal to lodge your claim. Then you will begin conciliation where you can continue to seek a settlement agreement until the case is heard at tribunal.

    3
    At the hearing
Burden of proof is a legal term, the person who has burden of proof is responsible for proving something. In this case you must prove your case on a 'balance of probabilities', which means to prove that something is more likely than not.

First, you will have the burden of proof to show that you are receiving less pay than a valid comparator who is doing equal work.
If you are able to prove this, your employer will then have the 'burden of proof'.
They must prove that there was a 'material factor' which is not tainted by direct sex discrimination, or accept the claim.
If your employer is able to prove that there was no direct discrimination, you may be able to prove that there was indirect discrimination, if the material factor they relied on unfairly disadvantages people of your sex.

    4

    What can you win in an equal pay claim?

If you win your claim at tribunal you are entitled to:
  • An order from the employment tribunal declaring your rights
  • A pay rise, including any occupational pension rights, to match your comparator's
  • Any beneficial terms in the comparator's contract must be included in yours
  • Any less favourable terms in your contract must be made as good as it is in the comparator’s
  • Equality in the terms of your contract for the future (if you're still in employment)
  • Compensation consisting of back pay (if the claim is about pay) and/or damages (if the complaint is about some other contractual term)

Back pay can be awarded for up to a maximum of six years in England and Wales and up to five years in Scotland.
The employment tribunal can award interest on the compensation.
They can also order your employer to carry out an equal pay audit.

You are protected from any unfavourable treatment (victimisation) that is a result of your raising an equal pay complaint. As is anyone who has assisted your claim including comparators and trade union or employee representatives.
Read more on victimisation in our article on discrimination.

Frequently Asked Questions
If you lose at tribunal you may be able to appeal.
There is also a chance that you may be ordered to pay your employer's tribunal costs.
Not all cases of different pay are unlawful. For example, agency workers are not entitled to the same pay as their permanent counter parts until after 12 weeks. You will only have an equal pay claim if you can show that your sex is the reason for the difference in pay. Contact us if you're not sure whether your pay situation qualifies as unlawful.

Are you getting equal pay?


Sadly the gender pay gap is very much alive and kicking. If you are being paid unfairly, get in contact with us and see how we can help.

Employment Law Specialist | Competitive Quotes | Straight Talking Legal Support


This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
 
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