The Equality Act 2010, Equal Pay and Comparable Pay for “Like for Like” Work
It has been widely reported in recent weeks that a certain supermarket chain has been inundated with claims, numbering many thousands for equal pay based upon a comparison of work done by shop floor workers (who are mainly women) with warehouse workers (who are mainly men).
In the UK it has long been the law that an employer cannot discriminate between male and female staff by paying the former a higher rate of pay than the latter where they are doing exactly the same job. The Equality Act 2010 extends the scope of discrimination and has broadened the definition to now include equal pay for “like for like” work.
This is the essence of the supermarket claims. The workers on the shop floor say they are doing such a similar job that they should be paid the same as the warehouse workers. In the same way, it is estimated that Birmingham City Council will have to pay out over £1billion to settle equal pay claims.
There workers in what are generally perceived as “womens” jobs doing cooking, cleaning, etc were unlawfully paid less than workers doing “mens” jobs such as refuse collectors and grave diggers.
So what is “equal pay” and “like for like” work?
Equal pay means that your employer must pay you the same amount as a member of the opposite sex. This does not just mean equal salary, but also equal terms. This covers all conditions of work. For example:-
- whether or not you are offered overtime and if so that you are allowed the same hours and at the same rate of pay as the opposite sex;
- your hours of work must be equal; one gender cannot be made to work different hours or more hours;
- perks such as company cars, gym membership, access to pension schemes, etc must all be the same regardless of your gender;
- Annual leave entitlements – again it is unlawful to discriminate.
There are no limits to the scope of what might be covered by the “equal pay” provisions since this covers all of the terms of employment. An employer must provide exactly the same terms regardless of the gender of the employee.
Like for like work means that an employer must not only pay employees of the opposite sex doing the same job the same salary; but must also pay employees doing similar jobs the same. What is similar work is a matter of fact in all cases, but essentially this will be one of three things:-
1. Work that is broadly the same eg driving a bus as opposed to a van;
2. Work rated as the same by the employer – many employers particularly in the public sector set pay scales according to set bandings. The jobs might be totally different, but the employer has decided they have a similar worth. If that is the case, the two jobs become “like for like” and it is unlawful to pay one job holder more than the other.
3. Work that is of “equal value” ie carries roughly the same level of responsibility. Once more the jobs can be entirely different, but if they involve the same sorts of skills and responsibility level then the pay must be the same.
If you think that you are being unlawfully discriminated against, how then do you build a case?
In the first instance you will probably have a hunch, if not concrete proof, through talking to works colleagues that a member of the opposite sex doing the same or a similar job is earning more than you.
In this country we are very shy about discussing pay and conditions with co-workers and maybe even believe that in doing so the employer can discipline or sack us for breaching confidentiality. The Equality Act makes it clear that it is unlawful to prevent co-workers discussing salary details amongst themselves. The employer cannot discipline nor treat you any differently for doing so.
If you think your employer may have a case to answer, then a formal request for information can be given to which the employer must respond. Alternatively, most employers have an internal grievance procedure through which you can raise your concerns.
Ultimately, if you cannot settle the issue with your employer, then you can proceed with the case to an employment tribunal, although this must be viewed as a last resort.
Many people are concerned that brining a case against their employer will result in tension at work and perhaps outright hostility. This is contemplated by the Equality Act – it is unlawful for your employer to treat you unfairly simply because you make a claim or raise a complaint.
It remains to be seen whether the supermarket claims will succeed since those are based upon an argument that workers doing different jobs should be paid the same using the “like for like” argument. Nevertheless, this is a developing area of law and given the very wide scope of what might be discriminatory we are likely to hear of far more reported actions in the future.
If you have a problem at work, believe you are being under paid or think that you might be discriminated against due to your gender, please contact us for further advice. Because we speak your language we are best placed to advise you upon the merits of any potential claim. We are more than happy to discuss any potential case with you, free of charge and without obligation. Claiming through Optimal Claim carries a genuine “no-win, no-fee” guarantee. Should you lose your claim then we do not charge.