Leducate Explains: Equal Pay
Hint - key terms are defined. Just click on the blue words to see their definitions!
Have you ever wondered what ‘equal pay’ means, who it protects, or how it is linked to the ‘gender pay gap’?
This article will answer your questions and explain the law on equal pay.
What is “Equal Pay”?
Equal pay means that men and women must be paid the same wages for equal work. It is an employment right to which all workers are entitled, with certain exceptions.
Some types of employment rights only apply if a person has been employed for more than two years, such as redundancy payment. This time requirement does not apply for equal pay claims – a person can bring the claim as soon as they have been employed and whether they work full-time, part-time or on a zero hours contract.
The campaign for equal pay has a long history in the UK. As early as 1888, women and girls working at a match factory in East London went on strike to protest low wages and poor working conditions. Later that year, the Trades Union Congress called for women to receive the same wages as men for identical work. Almost 100 years later, the Equal Pay Act 1970 was passed, which made pay discrimination based on gender illegal. Rules on equal pay were also included in the Equality Act 2010.
What is the law on Equal Pay?
The law requires that men and women who are in the same employment and performing equal work must receive equal pay. This is the case unless there is a valid justification or reason for the pay difference.
This means that to show you are not being paid equally you need to:
Compare your pay to someone of the opposite gender
Show that someone is earning more than you who works for the same person as you.
‘Equal work’ - discussed more below.
Case Study: Asda Stores Ltd v Brierley and others [2021] UKSC 10
In this case against ASDA, women working in supermarkets wanted to compare their pay to men working in the same jobs.
ASDA argued that the men and women were not in the ‘same employment’ because they worked in different places.
The Court decided that as both the men and women had broadly the same terms and conditions in their contract, the women met the requirement of being in the ‘same employment’ as the men.
This means that someone does not need to be working in exactly the same location as a colleague to compare their work to the other.
What does “Equal Work” mean?
The law recognises that sometimes an employee cannot find someone in the exact same position to compare themselves to. To remedy this, section 65 of the Equality Act 2010 defines ‘equal work’ in three more ways
‘Like work’: work which is the same or similar.
e.g. a man making a customer breakfast and a woman making a customer lunch.
‘Work rated as equivalent’: work which a professional has declared to be equally important in a job evaluation scheme.
e.g. dinner ladies working at a school and a male rubbish collector.
‘Work of equal value’: work which is not similar and has not been described by a professional as equivalent, but which is equally valuable in terms of the skills, decisions and effort involved.
How might an employer respond to an Equal Pay claim?
An employer may respond to an equal pay violation by arguing they had a ‘valid justification’. One way they might be able to do this is if there is a ‘genuine reason for the difference in pay’.
An example of a ‘genuine reason’ might be the location of the job and local cost of living, or level of qualification of the two employees. For example, a civil servant (a person working for the government) might have a different salary based on whether they live in London or not.
The important thing to remember is that the ‘genuine reason cannot be related to (or ‘tainted by’) discrimination because of gender.
‘Tainted by gender’ means that employers cannot justify a man earning more than a female colleague simply because he is a man and she is not (or vice versa).
A ‘gender tainted’ reason could relate to childcare commitments. Statistically, female parents with jobs tend to spend more time each week taking care of children than male working parents. As a result, justifications based on childcare could be ‘gender tainted’.
Summary!
To make an equal pay claim, an employee must be able to point to a person who is paid more, and is:
1. of the opposite gender
2. in the same employment
3. doing equal work
The employer then must have a ‘valid justification’ to explain the difference in pay.
What is the process of making a claim?
If an employee thinks he or she has an equal pay problem, this person may raise the issue within the workplace. The employee could talk to their employer informally or make a formal complaint.
If unsuccessful, the person could make a claim to an employment tribunal for equal pay. The issue may go to court, if the employer or employee disagrees with the tribunal’s decision.
Success in the tribunal or the courts:
Firstly, if the employee wins, they are likely to receive a payment for the amount they should have been paid in the past. The employee’s pay will also be raised to the amount of the employee doing equal work but earning more.
Secondly, the successful employee’s colleagues may be able to bring a ‘piggyback claim’. This means that they can follow on from the first claim to make the case that they were also not paid enough.
Losing an equal pay claim can be embarrassing for an employer and can also turn out to be very expensive. As a result, sensible employers will be careful and honest about the amount people earn, for example publishing what each employee earns each year.
Since 2017, it is also the law that certain larger employers must publish wages.
Is “Equal Pay” different to the Gender Pay Gap?
‘Equal pay’ and the ‘gender pay gap’ are different ideas but are both linked to fair treatment of male and female employees.
Paying employees differently for the exact same work is unequal payment, which is illegal.
The gender pay gap is the difference in pay for men and women on average. Statistics on annual earnings suggest that, on average, women still earn less than men.
A company may pay all employees doing the same job fairly but promote just one gender to the highest paid roles. For example, it may have only men as directors or in other senior positions. This would mean, on average, men in the company earn more than women.
This gap in pay is not illegal but can put one gender at a disadvantage. Many employers are trying hard to address the gender pay gap.
Written by Hebe Robinson
Glossary box
Redundancy payment: a payment you are legally entitled to if you’ve been working for your current employer for at least two years and you are dismissed for economic reasons (such as a recession, or a struggling business).
Zero hours contract: a type of working arrangement which means that the employer is not obliged to provide any set number of working hours to the employee.
Trades Union Congress: a national umbrella organisation which unites trade unions.
Contract: A contract is a legally binding agreement between employee and employer. It sets out the terms and conditions which apply to a person’s employment, but also includes terms which are part of employment law.
Terms and conditions: In the context of employment, terms and conditions generally describe an employee’s rights, responsibilities, salary, paid time off and weekly hours.
Job evaluation scheme: a process which compares the value of jobs in an organisation in a consistent and non-discriminatory way.
Employment tribunal: Just like courts, tribunals make decisions about legal disputes between workers and employers which are related to employment rights.