Making an Equal Pay Claim

• To find the right comparator: They have to be doing the same job as you, employed (or previously employed) by the same employer and they have to be a man (or woman if you are a man looking to make a claim);
• The comparator is doing equal work;
• A comparison of your terms and conditions with those of your comparator; and
• Consideration of whether there is any legal explanation for the discrepancy in pay and whether the difference is due to sex discrimination, i.e. being a woman (or a man).

Individuals and trade union reps need to be aware that if you have identified a comparator of the opposite sex who is paid more for work of equal value, but there is also someone of the opposite sex who is paid the same or less than you, the employer can use this to argue against an equal pay claim. There may still be indirect sex discrimination, in which case the fact that there are others of the opposite sex who are not paid more will not defeat a claim.

Employers might argue that they are ‘taking proactive steps’ to reduce the risk of any equal pay claim as part of their mitigation; some have been successful with this argument.

An employer can also justify unequal pay if the difference is due to a genuine material factor not related to gender. There are a number of reasons why a court has sided with an employer on an equal pay case, including differences in experience, years of service, qualifications, tasks, locations and shifts. It is important that you consider these issues when picking a person to compare pay rates with. Again, look out for any indirect sex discrimination. An employer can only rely on a material factor as a defence if the factor is untainted by any discrimination.

TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006 can be a big stumbling block in equal pay cases. Staff transferring in from another employer with higher pay than those already employed by that company can create unequal pay situations. TUPE preserves
the terms and conditions of transferring employees and prevents the new employer from putting them on a lower pay rate, even if this would bring them into line with current employees doing the same work.

There is no time limit on the impact of TUPE, and so such pay differences can be maintained and embedded over a long period of time. When tackling unequal pay in your workplace, you will need to consider if TUPE is a factor and how it might impact on the pay of staff. However, as with any form of pay protection, the longer the pay discrepancy exists, the harder it is for the employer to establish that it is the cause of the discrepancy. In any event, as with other factors, if the TUPE results in indirect sex discrimination, the employer would need to justify it. Also, financial considerations aside, there is nothing to prevent an employer raising the pay of its existing employees to parity with the staff transferred in.