Today is Equal Pay Day

If you are being paid less than your male colleague here’s what you can do.

Today (10 November 2016) is equal pay day. If you are a woman, today is the day that you effectively stop earning relative to men. Due to the 18% differential in male and female pay in the U.K. from today until the end of this year you are basically working for free!

This is an unsettling thought especially considering that laws prohibiting unequal pay were introduced in 1970. That’s over 45 years ago.

What legal protection do you have?

Under the Equality Act 2010 (the Act), employers must give men and women equal treatment in the terms and conditions of their employment contract. It stipulates that women have the right to the same pay as a man, where they are doing:

• ‘like work’ – this means work that is the same or broadly similar as a male colleague;
• ‘work rated as equivalent’ – this refers to work rated as equivalent under a job evaluation scheme; and
• ‘work of equal value’ – this covers work which is different to a male colleague but of an equal value in terms of effort, responsibility, decision making and the skill involved.

The Act prohibits disparity not just in terms of wages but contractual terms generally. This means there should be parity in respect of contractual bonuses, other performance-related benefits, overtime rates, annual leave entitlements and hours of work. Here, I’ve used ‘pay’ as a shorthand to refer to such contractual benefits.

What steps can you take?

1. Identify your comparator. You must be able to identify an actual comparator. This will be a man doing the same, similar job or job of an equal value but who receives better pay. It does not matter that there might be another man doing the same job and who is paid the same as you.

The comparator does not have to be employed at the same time as you, it can be your predecessor or successor. You can choose as many comparators as you want.

2. Consider possible reasons for the difference in pay. In equal pay cases, employers often try to put forward a defence that the difference is justified because the work carried out by the comparator(s) is ‘different’.

Employers may point to factors such as the male colleague having a more senior or different title, managing staff or possessing particular qualifications. These factors will not necessarily allow your employer to argue that the work is different. What needs to be looked at is the substance of the work being done.

To head off such responses, try to gather evidence that will support you. For instance, find a copy of the job description or advertisement for your comparator’s role. Consider the work you do and your responsibilities as compared to your comparator, in addition to any potential differences.

Bear in mind that your employer might use such differences to justify the pay gap and be prepared to counter your employer’s arguments. For example, if your employer says that your colleague earns more because he has particular qualifications, if those qualifications are not relevant to the role, you can challenge that as a reason to pay him more. An employer may defend a claim if it can show that the reason for the difference is due to a genuine factor and not based on your sex.

3. Make your employer aware of your concerns. The first step should be to speak with your manager or HR. Outline your concerns, in particular setting out why you feel that your job is the same as, similar to or of equal value to your colleague.

If a conversation does not lead to a satisfactory resolution, you should raise a written grievance. In raising your grievance, follow the ACAS Code of Practice on Disciplinary and Grievance Procedures. If your claim succeeds but you failed to comply with the code, the tribunal could reduce your compensation by up to 25%.
4. Serve a questionnaire on your employer. This will help you obtain information and facts relating to your complaint. ACAS has prepared useful guidance on ‘asking and responding to questions of discrimination in the workplace’.

5. Take legal action. Ultimately, you can enforce your legal rights by bringing a claim against your employer. You should take advice at an early stage as sometimes it can be tricky to identify whether your claim is for sex discrimination or equal pay. It is important to get this right as the time limits are different.

You can bring a claim in the employment tribunal:

• while you are still employed;
• within six months’ of the end of your employment;

or in the High Court or county court within six years’ of your employment ending.

Equal pay claims can be of significant value, as you are entitled to receive interest and pay, backdated for up to six years. It is now mandatory to go through the ACAS conciliation period prior to submitting a claim in the employment tribunal.

Change is afoot…maybe

Regulations are due to come into effect next April which will require private and voluntary sector organisations with 250 or more employees to publish their gender pay figures and provide details of any pay gaps, along with their proposals for closing them.

Affected employers will be required to analyse their gender pay gap and publish a report within 12 months and annually thereafter. The report will be published on the employer’s website and be publicly available.

Unfortunately, the regulations do not contain any enforcement provisions or sanctions for non-compliance. However, the government has said it will run checks to assess compliance and publish tables to ‘name and shame’ those companies that fail to comply.

At this stage it’s difficult to see how effective the regulations will be in closing the pay gap. Let’s hope we don’t have to wait another 46 years.