September 2016 has seen the publication of a research paper by Warwick University entitled “Do Women Ask?”
It attempts to explore one of the possible explanations for the failure of the gender pay gap to disappear or even narrow despite 40 years having passed since the Equal Pay Act hit the statute books. It considers whether women are paid less because they simply do not ask for promotions or pay rises.
Whatever the reason behind the pay gap, employees are legally protected from being paid differently on account of their gender. The Equal Pay Act 1970 which was introduced in an attempt to resolve the disparity in pay between the sexes has been repealed but protection can be sought under its replacement, the Equality Act 2010.
The Equality Act protects people from being subjected to unequal treatment on gender grounds. It applies to pay and all other terms of an employee’s contract.
‘6 months to issue claims’
Unlike most employment claims which must be issued to tribunal within three months, claimants have 6 months to issue claims about equal pay. In order to bring a claim, an employee must identify a comparator whose pay or terms and conditions are better despite the fact that they are doing equal work.
Comparators can be sought from three possible areas:
- Like work. In other words work that is the same or broadly similar to the claimant’s work. For example a year two primary school teacher should be paid the same as a year three primary school teacher.
- Equivalent work. This category is useful where a company’s own job evaluation scheme rates work similarly. For example, a member of the housekeeping team in a hotel might be graded as equivalent to a porter.
- Equal value work. This is a slightly more complicated area but is at the heart of many of the most well-known equal pay cases. It allows comparisons to be drawn from workers doing different jobs but whose work requires similar levels of skill, effort and decision-making.
‘Examples of differences’
Having established a comparator, it is then for the employer to show that differences exist which justify the difference in pay.
Examples of differences might include level of skill or qualification required or the time at which the work is done. The differences must be of practical importance or they will be rejected by the tribunal.
Examples might include things such as a post requiring a professional qualification being better remunerated or employees in London being paid better than employees in the North because market forces means that the employer must offer better salaries to attract applicants for roles.
Finding out if pay is equal
Contracts of employment often contain clauses preventing employees from talking about their pay. Nevertheless, where an employee’s enquiry is motivated by concerns about equal pay then pay secrecy clauses are unenforceable.