Equal Pay Claims

Equal Pay Claims

The law makes it clear that men and women should be paid equally for equal work. The law on equal pay has been in place since the 1970’s, originally under the Equal Pay Act 1970 and more recently under the Equality Act 1970.

Despite the law being very clear on equal pay, unfortunately it remains a common problem in the workplace that men and women are not paid equally for equal work. It is particularly concerning that some of the leading equal pay claims in the UK relate to large public sector authorities not paying men and women equally, whom one would expect to obey the law in practice and in spirit, however, seemingly this has not been the case.

What type of pay is covered by equal pay law?

The following types of pay are covered by equal pay law:

  • Basic Pay
  • Holiday entitlement
  • Sick pay
  • Non discretionary bonus
  • Performance related pay
  • Other contractual benefits

What is equal work?

There are three categories of equal work:

  • Like Work;
  • Work rated as equivalent; and
  • work of equal value.

There are various legal tests to establish if the type of work you and your comparator carry out fall into one of the above categories. However, generally, if the work is broadly similar, has been categorised as similar or the work you carry out is equal in terms of the demands made of you, it will be deemed as equal.

Defence

An employer can pay a man more than a woman for doing equal work, but only if it can prove that the variation in pay is due to a material factor which is not directly or indirectly discriminatory. Whether a defence based on this argument is successful is largely dependant on the specific facts of the case. However, the reason put forward by an employer for the pay difference should not be sham or pretence. It must be a “genuine and material” factor.

Furthermore any material factor defence should be objectively justified by the employer. To consider if material factor is objectively justified your employer must show that the material factor:

  • corresponds to a real need on the part of the employer.
  • is an appropriate means of achieving the objective pursued.
  • Is necessary to that end

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Where to bring an Equal Pay Claim?

Generally, equal pay claims should be brought in a tribunal if it is within time. However, if you are too late to bring a claim in a tribunal, you can still sue in the civil courts. However, you should note that there are significant costs risks in the civil courts. In particular, the court normally orders the losing party to pay the winner’s costs, whereas in employment tribunals costs awards are relatively rare.

Time limits for equal pay claims

An equal pay claim can be brought in an employment tribunal at any time during the employment to which it relates or, if the employment has ended, any time before the end of the “qualifying period”.

What are the tribunal qualifying dates?

There are four different methods of determining the qualifying date (or the end of the qualifying period) for an equal pay claim in a tribunal. Which method should be applied depends on whether the case is a “standard” case, a “stable employment” case, a “concealment” case or an “incapacity” case.

  1. Standard cases
    In standard cases, the qualifying date is “six months after the last day on which you were employed in the employment. The exceptions to the rule are stable employment cases, concealment cases and disability cases.
  2. Stable work cases
    A “stable work” case (or “stable employment” case as they were referred to in the EqPA 1970) is one “where the proceedings relate to a period during which there was a stable working relationship between the worker and the responsible person (including any time after the terms of work had expired)”. In such a case, the qualifying date is the date “six months after the day on which your stable employment relationship ends.
  3. Concealment cases
    A “concealment case” is one in which your employer has deliberately concealed a relevant fact, without knowledge of which it was not reasonable to expect you to commence proceedings, and you did not discover this fact (or could not with reasonable diligence have discovered it) until after your employment ended. The qualifying date is six months after the date you discovered the relevant fact (or could with reasonable diligence have discovered it).
  4. Incapacity cases
    In a case in which you “had an incapacity” or were “under a disability” at any point after the end of the employment in question, time runs until six months after you has ceased to be under a disability. Having an “incapacity” means, in England and Wales, being under 18 years of age or lacking capacity within the meaning of the Mental Capacity Act 1995.

What can you claim for?

If you believe that you have a claim for equal pay then before bringing a claim you should consider submitting an Equal Pay Questionnaire to your employer and, depending on the response to the Equal Pay Questionnaire, lodge a written grievance.

You can submit an equal pay questionnaire to your employer at any time before a tribunal claim is submitted, within a 21-day period beginning with the day the claim is submitted, or later if permitted by the tribunal. Your employer must then serve a reply within eight weeks of receipt . The questions and replies, if properly served, are admissible in evidence before a tribunal.

In a successful equal pay case, the tribunal or court can make a declaration of your rights, order your employer to make a payment of any arrears of pay or to pay damages in relation to a contractual term that is not pay related.

In a standard case, payment of arrears can go back up to six years before the date your claim was brought. However, the arrears date is extended in cases where you have an incapacity or there has been concealment or fraud by your employer.