Equal Pay
Equal Pay is a cornerstone of workplace equality under the Equality Act 2010. The law ensures that men and women performing equal work, work rated as equivalent, or work of equal value are entitled to the same pay, unless a clear and lawful justification for a difference exists.
While the principle seems simple, its application can be complex. Equal pay claims often involve detailed comparisons of job roles, responsibilities, skills, effort, and working conditions.
Understanding Equal Work
The law recognises three main ways to determine if work is equal:
- Equal work – Employees perform the same or broadly similar tasks.
- Work rated as equivalent – Jobs are evaluated and rated as equivalent through objective job evaluation schemes.
- Work of equal value – Jobs may be different in nature but require comparable levels of skill, effort, responsibility, and decision-making.
For example, a legal assistant and a paralegal may perform different tasks, but if the roles require comparable skills, qualifications, and responsibilities, the pay must reflect that equality.
Justifying Pay Differences
Even when work is deemed equal, employers may lawfully pay differently if they can objectively justify the pay difference. Acceptable reasons can include:
- A seniority system
- A merit-based performance system
- Pay linked to experience or qualifications
However, vague or subjective justifications – like claiming one employee has a “glint in their eye”- will rarely satisfy a Tribunal.
Burden of Proof
In equal pay cases, the burden of proof shifts to the employer once an employee establishes a prima facie case that their pay is lower for equal work. This means employers must prove the pay difference is unrelated to sex discrimination. Failure to do so can result in substantial financial liability, including back pay and compensation.
Key Considerations for Employers
Employers should take proactive steps to ensure compliance:
- Conduct pay audits to identify and rectify unjustified pay gaps.
- Maintain transparent pay structures and document how pay decisions are made.
- Ensure job evaluations and grading systems are applied consistently.
- Train managers and HR teams on equal pay obligations and avoiding unconscious bias.
Key Considerations for Employees
Employees who suspect unequal pay should:
- Compare their role with colleagues of the opposite sex doing equal work.
- Keep documentation of job descriptions, pay records, and responsibilities.
- Raise concerns internally through the grievance process before considering formal claims.
- Seek advice early to understand their rights and potential remedies, including Employment Tribunal claims.
Legal Remedies
If an Employment Tribunal finds a pay gap is unjustified, remedies can include:
- Back pay for underpayment
- Compensation for financial loss or distress
- Recommendations for future pay adjustments
How Thrive Law Can Help
For Employers:
- Review pay structures and policies to ensure compliance with the Equality Act 2010.
- Implement proactive audits and training to prevent claims.
- Advise on defending claims effectively while reducing financial and reputational risks.
For Employees:
- Prepare grievances and evidence to support claims of unequal pay.
- Advise on Tribunal claims, including drafting and submitting forms, witness statements, and schedules of loss.
- Provide guidance throughout the process to maximise the likelihood of a fair outcome.
Get in Touch
If you believe Thrive Law can assist with an equal pay issue, please contact us at enquiries@thrivelaw.co.uk. Early advice can help prevent disputes from escalating and improve outcomes for all parties.
FAQs
The Equality Act 2010 gives employees the right to equal pay for equal work when compared with a real colleague of the opposite sex.
“Equal work” covers three situations:
- like work (the same or similar work),
- work rated as equivalent (under a job evaluation scheme), and
- work of equal value (where jobs are different but of equivalent overall worth to the employer).
The Act implies an equality clause into every employment contract, which automatically modifies any contractual term that is less favourable than that of the comparator.
Equal pay is specifically about sex-based pay differences. Pay differences based on other protected characteristics are addressed through discrimination claims, not the equal pay provisions. The legal framework is technical, and identifying the right comparator is often the most contested aspect of any claim, so getting early and precise advice is key.
Equal pay is a legal right: it concerns specific individuals doing equal work and being paid differently on the basis of sex. A breach of equal pay law gives rise to a claim.
The gender pay gap is a statistical measure and reporting requirement: the difference between the average (mean and median) hourly pay of men and women across an organisation. An employer with a significant gender pay gap isn’t necessarily breaking equal pay law; the gap might reflect a concentration of women in lower-paid roles rather than men and women in the same roles being paid differently. But a large gender pay gap can be a prompt to examine whether structural inequalities exist. Employers with 250 or more employees are required to report their gender pay gap annually.
You’ll need a comparator: a real, named colleague of the opposite sex employed by the same (or an associated) employer, doing work that is the same as yours, rated as equivalent, or of equal value. The comparison can’t be hypothetical.
Access to pay information is one of the biggest practical barriers. Many employers operate pay secrecy cultures, which don’t prevent employees discussing pay with each other but may create a chilling effect in practice. If you have reason to believe you’re being paid less than a male colleague for equivalent work, you can ask your employer for information about pay differences and their justification. A data subject access request may also be a route to relevant information. An employment lawyer can advise on how to identify and evidence a potential claim.
Yes, in general, employers have discretion to pay employees differently. The only risk is either equal pay issues, or allegations of discrimination.
Where this is a related issue, the allegation will fail where they can show a material factor that justifies the difference and that is not itself tainted by discrimination. Legitimate material factors can include differences in experience, qualifications, geographical location, or market forces at the time of recruitment. Length of service can be used, though it needs to be applied carefully to avoid indirect age discrimination.
The justification has to be genuine and capable of being evidenced.
For employees who are still employed, an equal pay claim can be brought while the inequality continues. Back pay can be recovered going back up to six years under the Limitation Act 1980 (in England and Wales). Once employment ends, you have six months from the effective date of termination to bring a claim.
This is different from the three-month time limit that applies to most other Employment Tribunal claims. If you’ve recently left a job and think you were paid less than a male colleague for equivalent work, you have six months to act. Don’t confuse it with the shorter window that applies to unfair dismissal or discrimination claims. Get in touch with our team to discuss your position.
