Equal pay means paying men and women the same for equal work or for work of the same value. What do the rules say about what counts as equal work and how do you make an equal pay claim?
Equal pay explained
The Equal Pay Act of 1970 says that men and women are entitled to the same pay for the same job if they work for the same employer. The Equality Act of 2010 replaced this legislation and allows for equal pay claims to be bought on the basis of unequal discretionary bonuses. It also sets out when two jobs should be treated as ‘equal work’. The gender pay gap refers to the average amount that women are paid compared to the average amount that men are paid.
SAVVY TIP: The Equality Act of 2010 also made it unlawful for employers to forbid workers from talking about their pay with each other to find out if they might have an equal pay claim.
In order to bring a claim for equal pay, you don’t have to be doing the same job as someone of a different gender who is being paid more. The work you both do must be of equal value or ‘equal work’.
What is included in pay?
For equal pay claims, pay includes things like pension benefits, holiday pay, company cars, overtime, bonuses, shift work and sick pay.
Equal pay for equal work
Equal work doesn’t necessarily mean doing exactly the same job. The Equality Act says that equal work can mean:
- Work where one job is like another – this means where the jobs are broadly the same and where the differences don’t really make much difference to the practical terms of the two jobs.
SAVVY TIP: If there are differences between the jobs, the rate at which these differences crop up and the extent of the differences would both be taken into account.
- Two jobs that are rated as being equivalent – this would happen if the two jobs were rated as making the same demands on the worker.
- Work that’s of equal value – this applies if the two jobs are not similar or rated as equivalent but equal in terms of the demands they make on the two workers in terms of effort, skill and decision making.
Making an equal pay claim
If you think you’re being paid less than a man you work with, there are several steps you should take:
Step 1: Choose your comparator. This is the person you choose to have your pay compared with is called a comparator. The comparator doesn’t have to have been doing the job at the same time as you – it could be someone who did your job before you. They have to work for the same employer but that could include a parent company. They don’t have to be employed at the same location as you. You can have more than one comparator but this can make an equal pay claim more complicated.
SAVVY TIP: You will have to name your comparator. However, he doesn’t have to agree with you that you have an equal pay claim. Your employer can say that they don’t agree that you should use a particular person as a comparator, but they can’t make you change it.
Step 2: Write to your employer to ask if there’s a difference in your pay and that of a male colleague and, if so, why this is. The employment advice organisation ACAS has a (lengthy) guide to ‘asking questions about discrimination in the workplace’. Pages 15 – 19 have information on the questions you can include.
Step 3: Try and resolve the situation informally. You shouldn’t just go straight to the employment tribunal. You’d be expected to have tried to resolve your equal pay claim without resorting to a tribunal. Reaching an agreement informally is one option. However, you should still treat it as though you were going to a tribunal and make notes of what’s said in meetings and keep copies of all letters or emails you send.
Step 4: Launch a formal grievance procedure. If you’re not getting anywhere with the informal approach, you can ask your employer about its formal grievance procedure.
Step 5: Fill in an early conciliation notification form. You can get this from ACAS’s website. Before you’re able to take your case to an employment tribunal, you must have asked ACAS for advice and early conciliation. This means that ACAS will talk to you and talk to your employer and see if they can help both sides reach a solution. You can find this form on the ACAS website.
Step 6: File your equal pay claim at the Employment Tribunal. You don’t have to pay a fee at the moment because the Supreme Court decided in July 2017 that the fees imposed were unlawful. This may change in the future if a new tariff of fees is introduced.
SAVVY TIP: You can make a claim for equal pay at any point while you’re employed by the company and up to six months after you’ve left it. However, there may be circumstances when you can bring an equal claim case more than six months after you’ve left. One example would be if you didn’t know that you were paid less than a male worker doing the same or a similar job.
How much could you get?
If your equal pay claim wins you may get a pay rise and/or you may get back pay or compensation for damages. The back pay could go up for up to six years (five years in Scotland).
Well known equal pay cases
There are a number of cases over the years that have hit the headlines. Here are some that leapt out at me:
- 1968 – Machinists’ strike at the Ford factory in Dagenham. This wasn’t an equal pay case as the Equal Pay Act didn’t exist (the strike happened in 1968). It was a strike about the grading of a range of jobs – including the machinists’ roles – by an independent assessor. The strike was one factor that led to the Equal Pay Act.
- 1988 Cammell Laird Kitchen strike. A cook in the Cammell Laird shipyard kitchen called Julie Hayward had worked for the company since she was 16. She started as an apprentice with three men who were training to be a shipboard painter, a joiner and a thermal insulation engineer. When they completed their apprenticeship, they got a pay rise but Julie didn’t. She was apparently rated as a labourer while her male colleagues were rated as craftsmen.
- 2012 – Birmingham City Council workers. Several thousand women working for Birmingham City Council won their equal pay case after it emerged that men doing equivalent jobs were being paid large bonuses that women didn’t receive. The level of the bonuses meant the men’s earnings could be double that of the female workers. The bonuses weren’t performance related, but could be paid even if the worker was off sick.
- Ongoing –Asda. Over 10,000 supermarket workers are bringing an equal pay claim against Asda. The claimants are both men and women (although women make up the majority). They work in the supermarket stores and say that their jobs are equivalent to those in the distribution centres. Distribution centre jobs tend to be done by men. In September last year the claimants were given permission to take their claim for equal pay to the tribunal.
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