Equal Pay: Your Right to Equal Pay for Equal Work

Every employment contract contains an implied equality clause under the Equality Act 2010. This means that if you are doing equal work to a comparator of the opposite sex, your contract terms must be at least as favourable as theirs.

• ✓Applies to all employees and workers, including part-time, fixed-term, and agency workers
• ✓Covers all contractual terms: pay, bonuses, overtime rates, sick pay, holiday entitlement, pension, company car
• ✓Applies where you and your comparator work for the same employer (or associated employer)
• ✓The comparator must be of the opposite sex, equal pay law protects against sex discrimination specifically
• ✓For race or disability pay gaps, you must use the general discrimination provisions of the Equality Act instead

Equal pay law covers three types of equal work. You only need to satisfy one:

Choosing the right comparator is the most important step in an equal pay claim:

• ✓Your comparator must be of the opposite sex
• ✓They must work for the same employer, or an associated employer (e.g. different companies in the same group)
• ✓They can work at a different location, but their terms and conditions must be broadly governed by a single source (e.g. a group-wide pay scale)
• ✓You can use a current comparator (someone currently employed) or a predecessor (someone who did your job before you on better terms)
• ✓You can have multiple comparators, this strengthens the claim
• ✓You cannot use a hypothetical comparator in equal pay claims, the person must be real and identifiable

Even if you can show you do equal work, your employer can justify the pay difference if they can prove a material factor, a genuine reason unrelated to sex:

• ✓Different geographical location (e.g. London weighting, market rate differences by region)
• ✓Different skills, qualifications, or experience that genuinely justify higher pay
• ✓Length of service, provided it is a proportionate way of rewarding loyalty
• ✓Different shift patterns (e.g. unsocial hours premium for night workers)
• ✓Performance-related pay, if the performance system is transparent and genuinely applied
• ✓Red-circling, protecting someone's pay after demotion or restructure (but only if time-limited and non-discriminatory in origin)

To bring an equal pay claim, you need to know what your comparator earns. UK law gives you some tools for this:

• ✓You can ask your employer what a named comparator earns, your employer does not have to tell you, but a refusal or evasion can be used against them as evidence in tribunal
• ✓You can use the ACAS Equal Pay questionnaire (now called the discrimination questionnaire) to ask your employer formal questions about pay
• ✓Trade union representatives may have access to pay data through collective bargaining, ask your union rep
• ✓For public sector employers: Freedom of Information Act requests can sometimes reveal pay scales and banding
• ✓Gender pay gap reports (published by employers with 250+ staff) may reveal information about pay structures
• ✓The Employment Tribunal has power to order disclosure of pay information from the employer once proceedings have started

• ✓Standard time limit: 6 months from the last day of your employment, or from any act complained of while still employed
• ✓If still employed: you can bring a claim at any time, but the 6-year back pay limit applies (back to when the underpayment started)
• ✓If you have left employment: you must claim within 6 months of the date employment ended
• ✓Stable working arrangement rule: if you have been doing the same job at the same pay for years, the clock may run from any later relevant act (e.g. a pay review that perpetuates the gap)
• ✓This is different from unfair dismissal (3 months), equal pay has a 6-month time limit

• ✓Back pay, up to 6 years' worth of underpaid wages (5 years in Scotland under the Prescription and Limitation Act)
• ✓Interest on the back pay
• ✓Future pay equality, the equality clause takes effect immediately, so your terms must be equalised going forward
• ✓There is no cap on the amount that can be awarded, unlike some other discrimination claims
• ✓Legal costs are not usually awarded in Employment Tribunal, but can be if a party has behaved unreasonably

Part-time workers have separate but overlapping protections:

• ✓The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 give part-time workers the right not to be treated less favourably than comparable full-time workers
• ✓Pay, hourly rates, access to pension schemes, annual leave, sick pay, maternity/paternity leave, and training all fall within scope
• ✓The comparator must be a full-time worker in the same or broadly similar work at the same establishment
• ✓Indirect sex discrimination may also apply, since women are disproportionately part-time, a policy disadvantaging part-time workers may be indirect sex discrimination under the Equality Act