Are you getting paid equally?
Nearly 40 years after the Equal Pay Act first introduced the concept of equal pay, the gender pay gap still exists: it stood at about 19 per cent in 2014. Over that period, thousands of claims have been brought, mainly by women working in the public sector, but we are now starting to see more claims in the private sector.
If you believe you are not getting paid the same as colleagues of the opposite sex doing the same job or, if you are facing a claim from an employee for equal pay, Taz Singh, Solicitor and Employment Law specialist at Malcolm C Foy & Co Solicitors in Doncaster and Rotherham can advise you on your rights.
Who can claim?
Equal pay law is now set out in the Equality Act 2010, which provides that claims can only be brought by employees and workers. There is no minimum length of service requirement. A claim can be brought by either a woman comparing herself with a man who receives higher pay, or a man comparing himself with a better-paid woman. If you are female and work with a woman who earns more than you for doing the same job, you cannot bring an equal pay claim, although you may have other justification for grievance.
Whom you can compare your terms to
A woman bringing an equal pay claim must identify a man who does equal work and who has more generous contractual terms than she does. They must work at the same establishment, or at a different establishment where broadly similar terms apply. The man must be employed by the same employer or an associated employer.
You can compare your contractual terms to someone doing:
the same or a broadly similar role;
a different role, rated as equivalent in terms of the demands of the job, under a job evaluation study; or
a different role which is of equal value in terms of the demands made by reference to factors such as effort, skill and decision-making.
Your comparator must be of the opposite sex and a current or former employee who works or worked in the same employment.
What is covered by the Equality Act?
Equal pay is not limited to salary or wages and includes other items, such as paid holidays, sick pay, overtime rates, contractual bonuses and benefits, and pensions. Each term is examined separately and compared, rather than looking at the package as a whole. An equality clause is implied into every contract of employment.
Non-contractual payments, such as discretionary bonuses, are not covered by the Equality Act and a claim for sex discrimination would need to be brought instead.
What you have to prove
You will have to prove that:
you are or were employed;
your opposite sex comparator is in the same employment;
you are doing like work, work rated as equivalent or work of equal value; and
your comparator has a term in his contract that is more favourable than the equivalent term in your contract.
An employer can argue that you have not chosen a valid comparator or can seek to justify the difference in pay. An employer can defend a claim if they can show there is a material factor other than gender that explains the difference in pay. Material factors have in the past included length of service, seniority, past performance, hours of work, location, market forces and mistake. They need to be both genuine and significant. If an employer can establish a material factor that is unrelated to gender, the equal pay claim will fail even if the difference in pay is unfair.
Making a claim
A claim can be made in the employment tribunal while you are employed. If your contract of employment ends, you have six months in which to bring a claim. There are various steps you can take before you issue a claim; for example, you should take advice on submitting a written grievance and submit an equal pay questionnaire.
If your claim succeeds, you will be entitled to the same pay as your comparator and the tribunal can award compensation going back up to six years from the date of your claim. The remedy is a declaration of your rights under the equality clause and payment of any arrears in pay, plus interest.
Equal pay claims can also be brought in the county court up to six years after your employment ends. This is more unusual and if you lose your case, in the county court, you will normally have to pay your employer’s legal costs.
For more information on equal pay or any employment law problem, contact Taz Singh, Solicitor and Employment Law specialist at Malcolm C Foy & Co Solicitors in Doncaster and Rotherham.
T: 01302 340005
F: 01302 322283
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances. 26.03.15