Equal Pay Rights

The Equality Act 2010 implies an equality clause into every contract of employment. This clause requires that, where a person (the claimant) is employed on work equal to that of a comparator of the opposite sex, any term in the claimant's contract that is less favourable than the equivalent term in the comparator's contract is modified to be no less favourable.

Three types of equal work are recognised:

• Like work: Same or broadly similar work
• Work rated as equivalent: Work that has been given equal value in a formal job evaluation scheme
• Work of equal value: Work that is different but can be shown to be of equal value in terms of the demands made (skill, effort, decision-making, etc.) — this is assessed by an independent expert appointed by the Tribunal

An employer can defend an equal pay claim by showing that the pay difference is due to a genuine material factor (GMF) other than sex — for example, a market premium, greater seniority, different qualifications, or performance-related pay.

To bring an equal pay claim, you must identify an actual comparator — a real colleague (or in some cases a predecessor or successor in the same role) of the opposite sex who does equal work for more pay. You cannot use a hypothetical comparator.

The comparator must work for the same employer or an associated employer at the same establishment, or at a different establishment where common terms and conditions of employment are observed. This means that in large organisations or public sector bodies, comparators can be found across different departments or locations.

Identifying an appropriate comparator can be challenging because pay information is often confidential. However, you can request information from your employer through an equal pay questionnaire, and employment tribunal proceedings provide for disclosure. HMRC also publishes gender pay gap reports for organisations with more than 250 employees.

Equal pay claims can be brought in the Employment Tribunal or the civil courts (county court or High Court). The process in the Employment Tribunal is:

1. Notify Acas for Early Conciliation
2. Complete and submit the ET1 claim form, identifying the comparator and the basis of the claim
3. The Tribunal may appoint an independent expert to assess whether the work is of equal value
4. The hearing considers whether the work is equal and whether the employer has a genuine material factor defence

Time limits: if you are still employed, you must bring a claim within six years of the unlawful underpayment. If your employment has ended, the limit is six months from the end of employment. For claims brought in the civil courts, the limitation period is six years. Early advice is essential to ensure you are within time.