Frequently Asked Questions
- What is Equal Pay?
- What does the law cover?
- What is a comparator?
- What type of claims can be made?
- Are there any defences for employers?
- What is gender pay reporting?
- What are the time limits for bringing a claim?
- What happens if the Employment Tribunal finds in my favour?
- How do I make a claim?
What is Equal Pay?
The Equality Act 2010 (which replaced the previous Equal Pay Act 1970) looks to eliminate discrimination in terms of pay by inserting an equality clause into an individual’s contract of employment. The sex equality clause modifies any term of the contract of employment that is less favourable to someone of the opposite sex.
Employees wishing to pursue an equal pay claim must select a comparator of the opposite sex who is employed to carryout ‘equal work’. The term ‘equal work’ is a broad term and the three types of claims that can be brought are discussed below. The contractual terms are then compared to see if there is any difference in benefits. If there is, then the difference will be analysed to see if there is any justification for the difference.
What does the law cover?
The sex equality clause covers a wide range of benefits. The most obvious is pay. The sex equality clause will apply to all contractual payments including basic pay, overtime and bonus payments. The clause will also apply to other payments that may not be included in the contract of employment. These can include holiday pay, sick pay, redundancy payments, termination payments and pension benefits.
What is a comparator?
The fundamental principle of equal pay is that an individual is paid the same as someone of the opposite sex for carrying out equal work. The comparator must be employed by the same employer. A recent decision of the Employment Tribunal (which confirmed a previous decision) held that is not necessary for the comparator to work at the same location. For example, the Tribunal in the ongoing case for Asda workers held that shop workers (see blog article titled Supermarket Equal Pay Claims) could compare themselves to workers in distribution centres.
What type of claims can be made?
There are three types of claims that can be brought for equal pay:
(1) “like work”
This is where the work done by an individual is broadly similar to that of their comparator. The Employment Tribunal will consider such factors like the duties, physical effort and responsibilities of the jobs to determine if the jobs are of like work.
(2) “work related as equivalent”
This is when an employer has carried out a Job Evaluation Scheme to grade the jobs that an individual does. Such schemes are often used by local authorities. An employer who has carried out a Job Evaluation Scheme must assess the jobs by taking into consideration a number of actors such as duties, physical effort, skill, decision making and responsibilities. Each Job Evaluation Scheme may be different but everyone should not be discriminatory. A number of Job Evaluation Schemes used by local authorities have been subject to challenge over recent years.
(3) “work of equal value”
These claims can often be the most difficult to assess. This will require the Employment Tribunal to have an independent expert assess both jobs and to consider if they are of equal value. Again, the expert will rely on a number of factors such the physical effort, skill and decision making.
Are there any defences for employers?
If there is a discrepancy in terms of pay between an individual and a comparator, then the employer must show justification. This is known as the ‘material factor defence’. This means that the employer must show that there was a legitimate reason for paying different levels of pay for similar jobs on the basis of sex.
There can be a number of reasons that will allow an employer to justify paying different rates of pay. For example, if an employer (local authority) is in a rural area and requires a male PE teacher, then a local authority may be justified in paying the male worker a higher rate of pay in order to fill the position if there is a shortage of candidates within the area. The onus will be on the employer to justify their position.
What is gender pay reporting?
Employers with more than 250 employees will soon have to report to the Government their rates of pay which will help to show any differences in pay between male and females. Employers will also have to publish additional information to include (i) gender bonus gap, (ii) proportion of men and women receiving a bonus and (iii) proportion of men and women working at each quartile of the organisation's pay distribution. The reports must be published within 12 months of April 2017. Each report must be available for at least three years in order to demonstrate what progress has been made.
What are the time limits for bringing a claim?
If an individual has left their employment, then a claim at the Employment Tribunal must be brought within 6 months of leaving their employment. The first step will be to make an application to ACAS as part of the mandatory conciliation process. If the claim cannot be settled, then ACAS will issue their certificate with a unique reference number. An individual will have at least one month from this date to lodge a claim however legal advice should also be taken to ensure that the claim is not out of time.
There may be a further option to bring a claim at the civil courts which would be the local Sheriff Court. This allows for a longer period to bring a claim as such claims must be brought within 5 years of inequality. However, we are unable to act in claim brought at Court under our no win no fee scheme. Should a claim be unsuccessful at the Sheriff Court, there will also likely be increased legal expenses as the unsuccessful party may also have to pay the other side’s legal expenses which may be significant.
What happens if the Employment Tribunal finds in my favour?
If the claim proceeds to the Employment Tribunal and the Claimant is successful, then the Employment Tribunal can make a Declaration and also award Compensation to the Claimant.
The Declaration from the Employment Tribunal may include a statement that the Claimant should receive a pay rise or that the contract of employment should be amended in order to remove discrimination. The Declaration may also order the employer to pay compensation to the Claimant.
The Compensation that can be awarded to a Claimant will be for a maximum of 5 years in Scotland from the date the claim was lodged at the Employment Tribunal. The Claimant may also be entitled to interest in respect of the back pay.
Although pursuing an equal pay claim can be stressful for an individual as claims can often take a number of years, there is no provision for Claimants to recover compensation for injury to feelings and stress.
How do I make a claim?
Dallas McMillan have extensive experience in pursuing claims for equal pay. We currently act for several thousand Claimants in ongoing claims at the Employment Tribunal. We recently settled a multi-million pound claim for over 800 individuals.
Contact our Employment Solicitors Glasgow, Scotland
If you wish to pursue an equal pay claim then please email This email address is being protected from spambots. You need JavaScript enabled to view it. or call David Hutchison on 01413336750 or Gordon Bell on 01413336750 . Alternatively, please complete the form at the side of this page and an information pack will be sent to you.
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