Q: what does equal pay legislation make unlawful?
The purpose of the Equality Act 2010 (previously the Equal Pay Act) is to eliminate discrimination as regards pay and other terms and conditions between men and women in the same employment when they are employed to do:
- Like work – work of the same or a broadly similar nature;
- Work rated as equivalent – that is, in jobs which a job evaluation study of part or all of their employer’s workforce has shown to have an equal value;
- Work of equal value – that is, in jobs which are equal in value in terms of the demands made on them under headings such as effort, skill and decision-making.
Q: does the Act just cover pay?
For the purposes of the Equality Act the concept of pay includes both pay and other terms and conditions particularly bonus payments but also for example holidays and sick leave. European law has extended the concept to include redundancy payments, travel concessions, employers’ pension contributions and occupational pension benefits.
This means that there may still be a breach of the principle of equal pay where a man and a woman receive the same basic rate of pay, but other benefits (such as a company car, private health care etc) are not provided on an equal basis. The Equality Act applies to pay or benefits provided by the contract of employment.
Q: what is a comparator?
In order to bring a claim, a complainant must choose an actual comparator of the opposite sex who is treated more favourably and is shown to be employed on “like work”, “work rated as equivalent”, or “work of equal value”. The comparator must be a current or previous employee of the complainant’s employer or an associated employer. The Equality Act refers to the “same employment” and this term has to be interpreted in the light of European law and you may wish to seek advice on interpretation of the law by domestic courts and European Court of Justice. A complainant can compare themselves with a predecessor or successor in their job.
Q: can my employer justifying paying me less than a person of the opposite sex?
If you are receiving unequal pay with a comparator who is doing equal work, the employer has to show that the difference in pay is genuinely due to a material factor other than the difference in sex. It is for the employer to show that such a factor exists and is the real reason for the difference.
For example, in some circumstances the operation of market forces may justify a difference in pay, such as the need to recruit for particular jobs or the need to retain employees occupying particular jobs. The employer must also show that all of the difference of pay is genuinely attributable to that factor.
Q: how can I find out if I am being unlawfully underpaid?
Through asking questions to the employer. See the ACAS guidance, Asking and responding to questions of discrimination in the workplace
Q: if I am being paid unlawfully how do I make a claim?
There are strict procedures and time limits which must be met if your claim is to succeed.
The Employment Tribunal time limits state that in general, you must present a claim to the Employment Tribunal within 6 months of the employment ending or a change in contract. Before presenting a claim you must complete an Employment Tribunal: Early Conciliation notification form
If you have left work or changed jobs more than 6 months ago, you can now as a result of the successful judgment in Abdulla v Birmingham City Council present a claim in the civil courts for breach of contract within 6 years of the employment ending or a change in contract.
Q: how far back can I claim?
Equal pay law only allows you to claim back for any employment you carried out in the 6 years before your claim being presented to an Employment Tribunal or Court.
"I was initially very unsure whether or not to take proceedings. Once Leigh Day took on my case I was sure I was doing the right thing and had every confidence in the team."
- equal pay client