Equal pay for equal work

Equal pay for equal work is a fundamental principle of that has been at the forefront of the global exchange regarding gender quality within the workplace for decades and the principle that men and women who undertake equal work shall receive equal pay has been enacted by the Equality Act 2010.

With the recent news that UK councils are facing thousands of equal pay claims it is important that organisations get ahead of any potential equal pay issues to protect themselves and mitigate the risks of a claim and we will provide further detail below regarding equal pay claims and the elements that must be considered when a claim is brought under the Equality Act 2010.

Equal Work

There are three categories of equal work:

• Like work. This means that the work being carried out is the same or is broadly similar with any differences that may exist are not of practical importance.

• Work related as equivalent. In this instance, the employer must have carried out and implemented an analytical job evaluation study or job evaluation scheme which places the jobs of the opposite sex at the same grade or rating.

• Work of equal value. This is work which is not "like work" or "work rated as equivalent" but is nevertheless equal in terms of the demands made on the individual(s) of the opposite sex. For example, the same level of effort, skill and decision making.

Comparator

Any equal pay claim based on the above categories will require a comparator of the opposite sex and this comparator can be either an existing or previous employee, but the comparator must be working in the "same employment".

"Same employment" means that the comparator works at the same place of work, however, the comparator may work at a different place of work if common terms apply at both places or work, or would if both places of work were at the same location. This will therefore encompass any organisations which directly or indirectly control other organisations.

Material factor defence

There are however some instances whereby an employer can pay a man more than a woman, or vice versa, for doing equal work, but only if the disparity in pay is due to a material factor which is not directly or indirectly discriminatory. In such a case, an employer can rely on this material factor as a defence to an equal pay claim.

It is important to note that each case is dependant on its facts, and whilst some material factor defences have succeeded, some have failed, and whatever the defence raised, the burden is on the employer to prove that the material factor relied upon is the real reason for the disparity as opposed to it being related to the sex of the individual(s).