By law, men and women must get equal pay for doing equal work, which is work that equal pay law classes as the same, similar, equivalent or of equal value. Equal pay law applies to pay and contractual terms and conditions. This guide explains how it works, how to find a comparator and how to bring a claim.
Key points
✓Acas says equal pay law applies to pay and contractual terms and conditions, including basic salary, pension, working hours, annual leave allowance, holiday pay, overtime pay, redundancy pay, sick pay, performance-related pay such as a bonus in the employment contract, and benefits such as a gym membership or a company car.
✓To make an equal pay claim you need to show your pay and conditions are worse than someone else's, called a comparator, who must be of the other sex and doing equal work for the same or an associated employer.
✓Acas says a comparator can be someone who currently works for your employer, or someone who used to, and more than one comparator can be used.
✓Your employer can defend a claim by showing that the difference is because of a material factor that does not involve treating you less favourably because of your sex.
✓An equal pay claim to an Employment Tribunal must usually be brought within 6 months of the last day of the employment (or of the stable working relationship ending).
What is the right to equal pay?
If the terms of your work do not include a sex equality clause, the Equality Act 2010 treats them as including one. If a term of yours is less favourable than a corresponding term of your comparator's, your term is modified so as not to be less favourable, and if you do not have a term that benefits your comparator, your terms are modified to include one.
Equal pay applies to employees, workers, apprentices, agency workers, people on full-time, part-time or temporary contracts, and self-employed people who are hired to personally do the work
Equal pay law applies to pay and contractual terms and conditions, including basic salary, pension, working hours, annual leave allowance, holiday pay, overtime pay, redundancy pay, sick pay, performance-related pay such as a bonus in the employment contract, and benefits such as a gym membership or a company car
Your comparator must be of the other sex and doing equal work for the same employer or an associated employer
Acas says employers must not pay an employee less, or give them terms and conditions that put them at a disadvantage, because of disability, race, religion or belief, sexual orientation or another protected characteristic. Our discrimination at work guide covers those claims.
Gender pay gap vs equal pay: Equal pay and gender pay gap reporting are not the same thing. The gender pay gap is the difference in average earnings between women and men.
Northern Ireland: The Equality Act 2010 does not apply to Northern Ireland. nidirect says it is unlawful for employers to discriminate between men and women in terms of their pay and conditions where they are doing like work, work rated as equivalent in a job evaluation study by the employer, or work of equal value.
What counts as 'equal work'?
Your work is equal to your comparator's work if it is like their work, rated as equivalent to their work, or of equal value to their work.
Like work
Your work is like your comparator's work if the two are the same or broadly similar, and such differences as there are between them are not of practical importance in relation to the terms of the work.
Work rated as equivalent
Your work is rated as equivalent to your comparator's work if a job evaluation study gives an equal value to your job and theirs in terms of the demands made on a worker, or would do so were the evaluation not made on a sex-specific system.
Work of equal value
Your work is of equal value to your comparator's work if it is neither like their work nor rated as equivalent to it, but is nevertheless equal in terms of the demands made on you by reference to factors such as effort, skill and decision-making.
Acas says some jobs can be classed as equal work even if the roles seem different, and gives the example that a clerical job and a warehouse job might be classed as equal work.
Who can be your comparator?
These are the rules on who can be your comparator:
Your comparator must be of the opposite sex
If you are employed, your comparator can be someone employed by your employer or by an associate of your employer who works at the same establishment as you, or at another establishment where common terms apply, either generally or as between you and your comparator
Your comparator can also be someone whose terms are set by the same single body as yours, if that body is in a position to ensure equal treatment, or someone whose terms are governed by the same collective agreement as yours
Employers are associated if one of them has control over the other, both are controlled by another organisation such as a parent company, or a single organisation is able to set the terms and conditions for both
A comparator can be someone who currently works for your employer, or someone who used to, and more than one comparator can be used
The work your comparator does is not restricted to work done at the same time as the work you do
No comparator? If you cannot identify a comparator, Acas says you might be able to make a claim for sex discrimination, where you will need to show you would have received better pay if you were of the other sex.
The 'material factor' defence
The sex equality clause has no effect in relation to a difference between your terms and your comparator's terms if the employer shows that the difference is because of a material factor that does not involve treating you less favourably because of your sex than the employer treats your comparator.
If you show that, as a result of the factor, you and people of the same sex doing work equal to yours are put at a particular disadvantage compared with people of the opposite sex doing work equal to yours, the employer must also show the factor is a proportionate means of achieving a legitimate aim. A factor is not material unless it is a material difference between your case and your comparator's.
Acas gives these examples of why someone might get paid more than someone of the other sex who does similar work:
they are better qualified, if the job depends on their skills and they are hard to recruit
of where they are located, for example in London where the cost of living is higher
they do different shifts, and the employer has a good reason to pay one shift more than another shift
Acas says getting paid more must have nothing to do with someone's sex, and that if any circumstances only account for part of the difference in pay, someone might still have an equal pay case.
Your right to pay information
Acas gives these ways to find out whether you are being paid equally:
To help see if there is an equal pay issue, check your pay and how it is made up, and the pay and benefits of people of the other sex doing work you think is equal work
You can ask your employer or manager for information about pay and contractual terms and conditions, if you think you are not getting equal pay
You could ask others at work about their pay and benefits if it is about equal pay and you think it would help you decide if you have been paid unfairly, and they are allowed to tell you, but it is up to them to decide if they want to
A term of your work that purports to prevent or restrict you from disclosing, or seeking to disclose, information about the terms of your work is unenforceable in so far as you make a relevant pay disclosure, which is one made to find out whether or to what extent there is a connection between pay and having, or not having, a particular protected characteristic
If you believe you are not getting equal pay you can use a question and answer process, sending your employer a statement explaining what happened and asking for more information about your pay or terms and conditions, which could help resolve the issue without a tribunal claim
Two limits to know about:
Acas says your employer should take your request seriously and reply as soon as possible, but there is no law that says they have to answer your questions
Your employer can only give you general information about other people's pay and terms and conditions, and cannot share any personal details about other employees because of data protection law (UK GDPR)
Acas says the employment tribunal will look at if, and how, your employer answered questions.
How to bring an equal pay claim
1
Identify your comparator
Acas says to make an equal pay claim you will need to show your pay and conditions are worse than someone else's. This person is called a comparator and must be someone of the other sex doing equal work for the same or an associated employer.
2
Raise it with your employer
Acas says it is best to raise an issue informally first by talking to your employer. Acas says you can raise a grievance if raising the problem informally does not work or you think it is too serious to raise informally, and that if you have any evidence at this stage it is a good idea to share it with your employer when you raise the issue.
3
Notify Acas: early conciliation
Before you make a claim to an employment tribunal you must tell Acas, which will offer early conciliation that is voluntary, and if it does not work or you choose not to take part Acas will send you an early conciliation certificate. The time limit for making a claim is put on hold while Acas helps you resolve your dispute.
4
Make your claim
An employment tribunal has jurisdiction to determine a complaint relating to a breach of an equality clause or rule, and nothing in section 127 affects such jurisdiction as the High Court, the county court, the Court of Session or the sheriff has in relation to an equality clause or rule. Acas says this is a complex area so it is a good idea to get legal advice.
An equal pay claim to an Employment Tribunal must usually be brought within 6 months of the last day of the employment (or of the stable working relationship ending)
A stable work case is a case where the proceedings relate to a period during which there was a stable working relationship between the worker and the employer, including any time after the terms of work had expired
In a concealment case, where the employer deliberately concealed from you a fact you could not reasonably have been expected to bring the claim without knowing, the 6 months begin with the day you discovered, or could with reasonable diligence have discovered, that fact, and in an incapacity case they begin with the day you ceased to have the incapacity
The time limit for making a claim is put on hold while Acas helps you resolve your dispute
Acas says equal pay is a complex area, so it is a good idea to get legal advice.
What compensation can you receive?
If a court or tribunal finds a breach of the equality clause, it may make a declaration as to the rights of the parties, or order an award by way of arrears of pay or damages
In England and Wales, in a standard case, a payment of arrears cannot cover a time before the day falling 6 years before the day the proceedings were instituted
In England and Wales, in a concealment case or an incapacity case, the earliest day is the day on which the breach first occurred
In Scotland, the earliest day is the first day of the period of 5 years ending with the day the proceedings were commenced, or in a case involving a relevant incapacity, fraud or error, the period set by section 135
Equal pay for part-time workers
GOV.UK says part-time workers are protected from being treated less favourably than equivalent full-time workers just because they are part time.
Part-time workers should get the same treatment for pay rates (including sick pay, maternity, paternity and adoption leave and pay)
Part-time workers should get the same treatment for pension opportunities and benefits, holidays, training and career development, selection for promotion and transfer or for redundancy, and opportunities for career breaks
Paying part-time workers less than full-time workers could also be indirect sex discrimination, because generally more women than men work part time
There are some situations when employers do not have to treat part-time workers in the same way as full-time employees. In these situations the employer must be able to show there is a good reason to do so, which GOV.UK calls objective justification.
Part-time workers who have been treated less favourably should first discuss it with their employer or trade union representative. They have the right to a written statement of reasons for the treatment, the request should be in writing and the employer must write back within 21 days. If the worker is not satisfied that the reason was objectively justified, they may be able to take a case to an employment tribunal.
By law, men and women must get equal pay for doing equal work, which is work that equal pay law classes as the same, similar, equivalent or of equal value. Equal pay law applies to pay and contractual terms and conditions, including basic salary, pension, working hours, annual leave allowance, holiday pay, overtime pay, redundancy pay, sick pay, performance-related pay such as a bonus in the employment contract, and benefits such as a gym membership or a company car.
How do I find out if I'm being paid less than a male colleague?
To help see if there is an equal pay issue, check your pay and how it is made up, and the pay and benefits of people of the other sex doing work you think is equal work. You can ask your employer or manager for information about pay and contractual terms and conditions, if you think you are not getting equal pay. Acas says there is no law that says your employer has to answer your questions, but the employment tribunal will look at if, and how, your employer answered questions.
Does equal pay only apply to men and women?
Equal pay law compares you with a comparator of the opposite sex. Acas says employers must not pay an employee less, or give them terms and conditions that put them at a disadvantage, because of disability, race, religion or belief, sexual orientation or another protected characteristic.
What if my employer says the pay difference is justified?
The employer can defend an equal pay claim by showing that the difference is because of a material factor that does not involve treating you less favourably because of your sex. If you show the factor puts you and people of your sex doing equal work at a particular disadvantage, the employer must also show it is a proportionate means of achieving a legitimate aim.
How long can I claim back pay in an equal pay case?
In England and Wales, in a standard case, a payment of arrears cannot cover a time before the day falling 6 years before the day the proceedings were instituted, and in Scotland the earliest day is the first day of the period of 5 years ending with the day the proceedings were commenced. An equal pay claim to an Employment Tribunal must usually be brought within 6 months of the last day of the employment (or of the stable working relationship ending).