Equal pay: what the law says 

On this page

• European equal pay law
  
• Burden of proof
  
• What is the difference between the Sex Discrimination Act and the Equal Pay Act?
  
• Part-time Workers Regulations
  

 

European equal pay law

European Union law also requires that women and men should receive equal pay for equal work. The original legislation on equal pay was contained in Article 119 of the Treaty of Rome. In 1997, this principle was then amended by Article 141 of the Treaty of Amsterdam.

Article 141 obliges each member state to ensure that men and women receive equal pay for equal work. It is broader than domestic legislation and has the effect of extending legal rights.

For example it has established that a difference in pay between full-time workers and part-time workers breaches the principle of equal pay for equal work, if it is actually just an indirect way of reducing the pay of the part-timers because they are exclusively or predominantly women. (These claims are known as indirect discrimination, or disparate impact claims).

Whenever there is variation between domestic and European law, European law overrides domestic legislation and can be used to extend a person's rights.

Back to top^  

Burden of proof

The burden of proof is initially on you, the applicant, to show that, on the balance of probabilities, your comparator is doing like work or work of equal value to yours.

If you succeed in this, the burden of proof then falls to the employer to show that the difference in pay is not linked to sex discrimination.

This means that equal pay will be awarded unless the employer can prove that the difference between the contracts is genuinely due to a reason that is not the difference of sex. These are known as differences of practical importance in like work claims; and as the material factor defence in equal value claims.

Back to top^  

What is the difference between the Sex Discrimination Act and the Equal Pay Act?

The Equal Pay Act covers most matters included in your contract of employment.

The Sex Discrimination Act relates to discrimination on the grounds of sex or marriage in non-contractual matters e.g. arrangements concerning recruitment, offers of employment, trade union membership, training, transfer, promotion, dismissals, redundancies and any other treatment not covered by your contract of employment.

Civil partners have the same workplace rights as married couples. Marriage discrimination relating to civil partnerships has not yet been tested in employment tribunals.

The relationship between the two Acts is complicated. If the Equal Pay Act cannot be brought to bear on a contractual matter, the Sex Discrimination Act will apply in some circumstances.

For more about making a claim under the Equal Pay Act of Sex Discrimination Act, see Using your rights [insert link to section]

The Sex Discrimination Act may also be the appropriate Act if you are complaining about lack of access to benefits, for example, if you are denied the right to work overtime or are excluded from a bonus scheme.

You should be aware that there is a time limit for taking a claim under the Sex Discrimination Act. The time limit is three months, less one day, starting from the date of the alleged discriminatory act. If in doubt, you should claim under both Acts.

Back to top^  

Part-time Workers Regulations

The Part-time Workers Regulations came into force in July 2000. They provide a more straightforward way to challenge different treatment of part-timers as you do not need a comparator of the opposite sex.

The regulations give people who work part-time the right to claim the same contractual rights as full-time workers whose work is broadly similar.

In general this means that, within the same organisation, part-time workers should get the same pay, holidays, sick pay, pensions, bonuses etc as full-time workers doing the same work, calculated on a pro rata basis.

Under the regulations, you are entitled to receive a written statement of reasons for your treatment from your employer, who must respond to the request within 21 days. This allows both parties to establish the facts and can be used in evidence at an employment tribunal.

The employer has the opportunity to justify the treatment on objective grounds, for example by demonstrating a genuine business need for it.

If you do not resolve your situation, you could go to an employment tribunal. There is a 3-month time limit within which your claim must be lodged with the tribunal office.

You are protected from victimisation and from dismissal for claiming rights under the Regulations.

Back to top^