Equal Pay in the Workplace

Submitted by Sarah Gledhill on Wed, 03/14/2018 - 12:35
Equal Pay in the Workplace

Equal Pay in the Workplace

It seems only fitting that on the 100-year anniversary of women gaining the right to vote the momentum surrounding women’s equality is stronger than ever. With all the ‘Time’s Up’ and ‘Me Too’ campaigns it’s hard to ignore the fact that despite how far equal rights have come, women are still having to fight to get equality in the workplace. This is no different for the issue of equal pay and with recent, high profile scandals within the BBC and Tesco it seems that this is going to be very much in the foreground for the foreseeable future, and quite rightly so!

Men and women performing similar jobs should be paid the same. This is the law and applies to all contracts within England and Wales. In 2010, The Equality Act brought in the sex equality clause. This clause is deemed to be in every employee’s contract of employment (whether or not it actually is) and has the effect that all women should receive the same employment terms as men (and vice versa) for work that is equal. If a term in a woman’s contract is less favourable to a comparative male’s, then the woman’s terms are modified as to not be less favourable. The most common issue regarding the sex equality clause is equal pay between men and women. If an employee wishes to bring an equal pay claim there are some requirements that need to be met.

The first requirement is a comparator. This means that someone who is wanting to bring an equal pay claim needs to be able to compare their employment terms to another employee of the opposite sex who is in the same or similar job. An employee’s predecessor can be used as a comparator as can the employee of an associate of the claimant’s employer.

Once a comparator is found, a claimant will need to prove that their jobs are those of ‘equal work’. There are 3 ways of establishing ‘equal work’, these are; ‘like work’, ‘work related as equivalent’ and ‘work of equal value’.

‘Like Work’ means that the claimant and comparator’s work is the same or broadly similar and that any differences between their work are not of practical importance. This is currently the argument being used by Tesco employees who are arguing that the female shop workers perform similar work to the male warehouse operatives. In both jobs they load and take stock and this argument will be put forward to a tribunal to decide if these jobs are considered ‘like work’.

‘Work rated as equivalent’ is where the two jobs would be given an equal value in a job evaluation study. This involves some analytical process that will decide if the two jobs are rated as equal.

‘Work of Equal Value’ covers the situation where the two jobs are neither ‘like work’ or ‘work rated as equivalent’ but nevertheless are equal in terms of the demands made on the employees. Emphasis will be placed on factors such as effort, skill and decision making when deciding if two jobs are of equal value.

There is a common misconception that an employer can prevent employees from discussing their salary with each other. These pay secrecy clauses or ‘gagging clauses’ on pay are unenforceable and employees are able to discuss their pay in order to establish the presence of any inequality or discrimination within their contract terms.

Once it is established that a woman performing equal work to a man is being treated less favourably, whether in pay or another term of their contract, it is presumed that this is because of the difference in sex. An employer can argue a defence to the disparity in contracts if they can prove it was due to material factors that are relevant and significant and do not themselves discriminate on sex. Such material factors would include skill shortages, geographical variations, performance related pay, experience and length of service. It is up to the employer to put forward their defence as once a claim has been proven the Tribunal must hold there has been a contravention of the sex equality clause unless the employer proves otherwise.

An employee has 6 months from the date they discover the difference in contract terms to bring a claim of equal pay to the Employment Tribunal. An employee can bring a claim of equal pay in the ordinary courts as well and would have 6 years to bring that claim. For anyone who believes they may be entitled to bring an equal pay claim they should speak to their employer first to try and resolve the issue. If this is unsuccessful they can seek advice from ACAS in order to bring a claim to the Employment Tribunal.

The usual remedy for an equal pay claim will be an arrears of pay. Arrears of pay are usually limited to 6 years. The recent Tesco claim has shown that an equal pay claim brought by a number of employees can be very costly for employers with Tesco facing a potential £4bn pay-out to their female employees.

Equal pay is enshrined in the law but unfortunately it is not an established practice. Many female employees are still being paid less than their male counterparts and whilst the recent news reports of gender inequality in the BBC and Tesco are bringing this issue to light we are still far away from complete equality in the workplace. Hopefully these cases will bring about a change in how employers pay their female employees and equal pay claims will become a thing of the past.

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