Equal Pay in the Workplace: A Journey Towards Gender Parity

As we commemorate the centenary of women securing the right to vote, the fervor surrounding women’s equality has never been more robust. In the era of ‘Time’s Up’ and ‘Me Too,’ the persistent struggle for gender equality in the workplace is impossible to ignore. Recent high-profile controversies, including those at the BBC and Tesco, emphasize the urgency of this ongoing battle for equal pay. The issue remains prominently on the horizon and, rightly so, as it continues to command the spotlight.


Legal Framework: Paving the Way for Workplace Equality

In the legal landscape, the principle is clear: men and women engaged in comparable roles should receive equal compensation. This is not just a matter of ethics; it is a matter of law, encompassing all employment agreements within England and Wales. The Equality Act of 2010 introduced the sex equality clause, which is considered implicit in every employee’s employment contract. This clause dictates that all women should enjoy the same employment terms as men (and vice versa) for equivalent work. If a woman’s contract is less favorable than a male comparator’s, her terms must be adjusted to ensure parity.


Prerequisites for Equal Pay Claims

Initiating an equal pay in the workplace claim requires meeting certain prerequisites. The fundamental requirement is the presence of a comparator, usually an employee of the opposite sex performing a similar or identical role. A predecessor or an employee of an associate of the claimant’s employer can serve as a comparator.


Establishing ‘Equal Work’

The path to demonstrating ‘equal work’ includes three distinct criteria:

  • ‘Like Work’: This pertains to situations where the claimant and the comparator undertake the same or highly similar roles, with any differences considered inconsequential. For instance, Tesco employees argue that female shop workers’ tasks are akin to those of male warehouse operatives. Both roles involve stock loading and management, a stance they will present to a tribunal as evidence of ‘like work.’
  • ‘Work Rated as Equivalent’: In this scenario, a job evaluation study deems both roles as equal, utilizing an analytical process for evaluation.
  • ‘Work of Equal Value’: This category applies when roles do not fit the ‘like work’ or ‘work rated as equivalent’ criteria but remain equal in terms of the demands placed on employees. This assessment considers factors such as effort, skill, and decision-making to establish equality.


Dispelling Myths about Pay Secrecy

Contrary to common misconceptions, employers cannot prohibit employees from discussing their salaries with one another. Pay secrecy clauses or ‘gagging clauses’ related to pay are unenforceable. Employees have the right to openly discuss their pay, facilitating the identification of inequalities or discrimination within their contract terms.


Equal Pay Claims and Employer Defenses

Upon establishing that a woman performing equal work to a man is being treated less favorably, whether concerning pay or other contract terms, it is presumed that this discrepancy arises from gender differences. Employers may present a defense against the disparity by demonstrating that it results from relevant and significant material factors that do not discriminate based on gender. Such factors might include skill shortages, geographical variations, performance-related pay, experience, and length of service. The onus is on the employer to present a compelling defense. If a claim is proven, the Tribunal must conclude that a contravention of the sex equality clause occurred unless the employer provides evidence to the contrary.


Initiating an Equal Pay Claim

Employees have a six-month window from the date of discovering a difference in contract terms to file an equal pay claim with the Employment Tribunal. Alternatively, they can bring a claim in ordinary courts, with a six-year timeframe for doing so. Employees who believe they have grounds for an equal pay in the workplace claim should first engage with their employer in an attempt to resolve the issue. If this proves unsuccessful, seeking advice from ACAS is the first step in bringing a claim to the Employment Tribunal.


Remedies and Ramifications

In most equal pay claims, the remedy typically involves arrears of pay, which are generally limited to the preceding six years. Recent cases, such as the Tesco claim, exemplify the potential financial impact of equal pay claims on employers. Tesco faces the prospect of a substantial £4 billion pay-out to its female employees.


The Path to Gender Equality

Equal pay is not merely a moral imperative; it is an established legal principle. Nevertheless, it remains a practice that is far from universally embraced. Many female employees continue to receive lower compensation than their male counterparts. While recent headlines have illuminated gender inequality at the BBC and Tesco, we are still a considerable distance away from achieving complete workplace equality. It is our hope that these cases will prompt employers to reevaluate their compensation practices, ultimately relegating equal pay claims to the annals of history.