If your employer refuses to engage with you to make meaningful changes to policies and
practises in the workplace and you think that there are examples where workers are being paid
unequally, then these people should be supported in filing equal pay claims. If someone feels
they are not getting equal pay, they might be able to make a claim to an employment tribunal.
There are ways you can find out if you/they are being paid equally. You could start by asking
your colleagues and checking job advertisements. If you are a trade union representative you
could survey your members.
You will need to identify if – or to what extent – there is a connection between your pay and
being a woman (or a man)[i].
An employment tribunal will establish if there are sufficient grounds for compensation to be
paid. You may have to fill out a questionnaire, which will help clarify the issues.
This is legally quite technical and if you are a member of a trade union you should seek help
from your trade union rep. If you are not already a member, you should consider joining a trade
Whether or not your union is recognised by your employer for the purposes of bargaining on
pay and conditions, there is nothing preventing a union from supporting members in lodging
an equal pay claim with an employer and acting as the members’ representative.
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.
You can raise an equal pay claim providing you are still in the job, or within 6 months of
leaving the job. Your trade union will help check that a claim is made within the timeline.
[i] Current legislation, and by extension a lot of the information we have about the extent and causes of unequal
pay in our economy, maintains a binary distinction between ‘women’ and ‘men’. Do try and make sure that you are sensitive to the fact that this language excludes the experiences of people who do not identify as either
gender, as well as the specific experiences of people who have transitioned, and support them to achieve better
representation both nationally and in your workplace. Request further support from your union around this
issue. There is a glossary of useful terms, where you can find out more about the
terms and examples we use.