This page provides a concise overview of the legal implications of equal pay and a guide to some of the important terms and principles in the Equality Act 2010.
More detailed information is available in the Code of Practice on equal pay. The code is the authoritative, comprehensive and technical guide to the Act’s provisions on how to ensure that women and men receive the equal pay and other contractual benefits for equal work.
Equality Act 2010
The law on equal pay is set out in the ‘equality of terms’ provisions of the Equality Act 2010 (the Act).
The Act gives a right to equal pay between women and men for equal work. This covers individuals in the same employment, and includes equality in pay and all other contractual terms (see below).
The Act implies a sex equality clause automatically into all contracts of employment, ensuring that a woman's contractual terms are no less favourable than a man's.
Pay includes the complete pay and benefits package
The ‘equality of terms’ provisions of the Act cover all aspects of the contractual pay and benefits package, including:
- basic pay
- non-discretionary bonuses
- overtime rates and allowances
- performance-related benefits
- severance and redundancy pay
- access to pension schemes
- benefits under pension schemes
- hours of work
- company cars
- sick pay
- fringe benefits such as travel allowances, and
- benefits in kind.
All employees have a right to equal pay
The equal pay provisions in the Act apply to men and women. However, to avoid repetition and for clarity this is written as though the claimant is a woman comparing her work and pay with those of a man.
The right of women and men to receive equal pay for equal work applies to:
- all employees (including apprentices and those working from home), whether on full-time, part-time, casual or temporary contracts, regardless of length of service
- other workers (eg. self-employed) whose contracts require personal performance of the work, and
- employment carried out within Great Britain or where there is a sufficiently close link between the employment relationship and the UK.
Equal pay in the same employment
A woman can claim equal pay with a man working:
- for the same employer at the same workplace
- for the same employer but at a different workplace where common terms and conditions apply, for example at another branch of a store, and
- for an associated employer; for example, at her employer's parent organisation.
European Union law also allows a woman to compare herself to a man who is not in the same employment but where the difference in pay is attributable to ‘a single source’ which has the power to rectify the difference (for example, where pay differences arise from a sector-wide collective agreement, or terms and conditions are set by a national scheme).
What is a comparator?
For a woman to claim equal pay, she needs to be able to compare her pay to a man carrying out equal work (a 'comparator'). It is for the woman to select the man or men she wants to be compared with. She can also claim equal pay with more than one comparator.
Her employer cannot influence the choice of comparator(s) and the comparator does not have to give his consent to being named in the equal pay claim.
A woman may be able to select a comparator by:
- using her own knowledge and experience of the work done by her male colleagues
- seeking advice from her trade union representative
- using information gained by going through her employer’s internal grievance procedure
- Applying to the employment tribunal for the discovery (or disclosure) of documents and information including about comparator/s.
The comparator can be:
- someone she is working with at the present time
- her predecessor in the job, however long ago he did the job - although the comparison may be limited to what he was paid at the time of termination of his contract, or
- someone she used to work with in the same employment prior to a TUPE transfer to the current employer.
The woman can compare any term in her contract with the equivalent term in her comparator's contract. This means that each element of the pay package has to be considered separately, and it’s not sufficient to just compare total pay.
For example, a woman can claim equal pay with a man who earns a higher rate of basic pay than she does, even if other elements of her pay package may be more favourable than his.
If the woman’s equal pay claim is successful, the result will be that her pay is raised to the same level as that of her comparator and she can be awarded back pay up to a maximum of six years. There will not be any reduction in his pay and benefits.
The comparator may be doing the same job as the woman, or he may be doing a different job. She can claim equal pay for equal work with a comparator doing work that is:
- like work - this is where the works involves similar tasks which require similar skills, and any differences in the work are not of practical importance
- work rated as equivalent - this is where the work has been rated under a fair job evaluation scheme as being of equal value in terms of how demanding it is
- work of equal value - this is work which is not similar and has not been rated as equivalent, but is of equal value in terms of demands such as effort, skill and decision-making.
Read more about the definition of equal work.
Making a claim for equal pay
Claims for equal pay are usually dealt with by employment tribunals. There is a fee for making a claim. You can find more information on fees in explanatory booklet T435 from HM Courts and Tribunals Service.
In claims related to ‘like work’ and ‘work rated as equivalent’, the procedure is the same as in any other employment case. For ‘work of equal value’ claims, there are special tribunal procedures.
The grievance procedure
Before making a complaint to the employment tribunal, a woman should try to resolve the issue of equal pay through the employer’s own grievance procedure.
Although there’s no legal requirement to do so, it’s good practice for all parties to keep records of any meetings. This includes the employer, the employee, and the employee’s union representative.
For armed services personnel, there’s a requirement to submit a complaint to an officer under the relevant service redress procedures and also to the Defence Council under those procedures, before making a claim in the employment tribunal.
Making a complaint
Since 6 May 2014, a woman is required to notify Acas of her complaint before starting a claim in the employment tribunal, and to follow the Acas Early Conciliation procedure.
Acas will then offer a free conciliation service for the parties before a claim reaches the employment tribunal. The time limit for a claim may be extended to allow for conciliation. You can find out more on early conciliation from Acas.
Making a complaint about an issue before 6 April 2014
If making a complaint about an issue that occurred before 6 April 2014, a woman can use the statutory questions procedure. Acas provides related guidance "Asking and responding to questions of discrimination in the workplace".
This is a procedure under which she is entitled to write to her employer asking for information that will help her establish whether she is getting equal pay - and if not, what the reasons for the pay difference are.
The woman can send a questionnaire to her employer either before she files her claim with the employment tribunal, or within 21 days of doing so.
If the woman subsequently takes a case to the employment tribunal, the information provided in her employer’s reply will help her to present the claim in the most effective way.
The proceedings should also be simpler, because the key facts will have been identified in advance.
If her employer fails to reply within eight weeks without reasonable excuse, or responds evasively or ambiguously, the employment tribunal may take this into account at the hearing.
The employment tribunal may then draw an inference unfavourable to the employer, for example, that the employer has no genuine reason for the difference in pay.
Even where the statutory procedure does not apply, a woman can write to her employer asking for information about her pay and that of her comparators and asking whether her pay is less favourable. An employment tribunal would still be able to take those questions and replies into account if it considered them relevant. Acas provides guidance "Asking and responding to questions of discrimination in the workplace".
Confidentiality and the principle of transparency
The principle of transparency doesn’t mean that someone has the automatic right to know what someone else earns. It means that employees have the right to know how the calculations are made. The Equality Act 2010 has now made secrecy clauses in employment contracts unenforceable when the discussion relates to equal pay and protects employees from victimisation if they seek to find out what other employees earn for this purpose. For further clarity see the Code of Practice on Equal Pay
There needs to be a balance between the ideal of transparency and the rights of individual privacy. A woman cannot require an employer to disclose confidential information, unless she asks for an order from the employment tribunal and the tribunal orders the employer to do so.
A woman can use the statutory questions procedure or correspondence to request key information. In many cases an employer will be able to answer detailed questions in general terms, while still preserving the anonymity and confidentiality of other employees.
The Data Protection Act 1998
Although much of the information a woman may request won’t be confidential, some of it might be. For example, the exact details of a comparator’s pay package.
Pay records will usually include personal data covered by the Data Protection Act, which can only be disclosed in accordance with data protection principles. Other personal information, such as ethnic origin and medical details, are also subject to particular safeguards.
The disclosure of confidential information in the employment context is also protected by the implied duty of trust and confidence owed by an employer to an employee.
For further guidance see Using the Data Protection Act and Freedom of Information Act in Employment Discrimination cases.
Disclosure of information to unions or employee representatives
Under the Trade Union and Labour Relations (Consolidation) Act 1992, employers have a duty to disclose to a recognised trade union, on request, information to enable constructive collective bargaining.
Information about pay and terms and conditions of employment usually comes within this duty to disclose – but it’s important to note that the duty applies only to information for collective bargaining by/with trade unions.
Time limits for applying to an employment tribunal and conciliation
As a general rule, an equal pay claim must be lodged with an employment tribunal within six months of the date of the end of the woman's employment with the respondent.
This means that:
- if the claimant is still working for her employer - the time limit has not started to run, and
- if the claimant no longer works for her employer - the six-month time limit started running from the date that she left.
The time limit can be affected if:
- the claimant is suffering from an ‘incapacity’
- the employer has deliberately concealed the pay inequality
- the claimant has been engaged on a series of contracts
- there has been a fundamental change to the claimant’s contract of employment
- there has been a TUPE transfer, or
- the claimant is in the armed forces.
It’s the claimant’s responsibility to ensure that she lodges her claim within the time limit and, if necessary, obtains advice on how it applies in her case.
The time limit for a claim may be extended to allow for conciliation under the Acas early conciliation procedure. You can get advice on this procedure from ACAS [link].
The burden of proof
The woman bringing an equal pay claim has to show the employment tribunal that, on the face of it, she is receiving less pay than a man in the same employment doing equal work.
Her employer must then either accept her claim or prove to the employment tribunal that the difference in pay was for a genuine and material reason, which was not the difference of sex.
The fact that a woman is paid less than a man doesn’t necessarily mean she is suffering sex discrimination in pay. The possible defences for an employer against an equal pay claim include:
- The woman and her chosen male comparator are not doing equal work.
- The chosen comparator is not permissible – for example, he is not in the same employment and there is no body that is a single source of their terms.
- For equal value claims only - the jobs being done by the woman and the man have been evaluated and rated differently under an analytical job evaluation scheme that is free from gender bias.
- The difference in pay is due to a material factor, which is not gender. In practice, an employer may identify more than one material factor. For example, an employer may argue that the man is paid more because he is better qualified than the woman and because it is difficult to recruit people with his particular skills.
Awards of equal pay
If the woman succeeds in her claim she is entitled to:
- an order from the employment tribunal declaring her rights
- her pay, including any occupational pension rights, being raised to that of her male comparator
- any beneficial term in the man's contract but not in hers must be inserted into her contract
- any term in her contract that is less favourable than the same term in the man's contract must be made as good as it is in his
- equality in the terms of her contract for the future (if she is still in employment), and
- compensation consisting of back pay (if the claim is about pay) and/or damages (if the complaint is about some other contractual term).
Back pay can be awarded up to a maximum of six years (five years in Scotland) from the date that proceedings were filed with an employment tribunal. The employment tribunal may also award interest on the compensation and it can order the employer to carry out an equal pay audit.
Non-contractual pay and conditions
A woman might think she is being discriminated against in respect of non-contractual or discretionary payments, or in relation to issues such as recruitment, training, promotion, dismissal or the allocation of benefits.
In such a case, her claim will be made under the sex discrimination at work provisions of the Equality Act 2010, rather than the equal pay provisions.
She can also make such a claim where she cannot identify a male comparator but thinks that a man doing her job would have been paid more than she is.
The distinction between these types of claims is not always clear cut. If there is any doubt as to which provisions apply, a woman should seek legal advice. This is especially important because different time limits apply.
Claims for sex discrimination must be lodged within three months of the alleged act of discrimination, subject to the tribunal’s discretion to extend the time limit where it is just and equitable to do so. The conciliation procedures above must be complied with first and in some cases the time limit may be extended to allow for conciliation.
For Armed Services personnel the time limit is six months from the date of the act complained of if they have followed the appropriate procedures.
Protection against victimisation
The Equality Act 2010 protects employees from being victimised for making a complaint about equal pay or sex discrimination (unless it’s both untrue and made in bad faith), or for giving evidence about such a complaint.
Victimising a woman because she has made a complaint about equal pay is also unlawful. The ‘complaint’ doesn’t have to be by way of bringing a claim to an employment tribunal – it also includes any discussion or correspondence about the matter between the woman and her employer.
The protection against victimisation covers not only the woman bringing the claim, but also anyone who assists her. For example, her comparator and any trade union or employee representatives.
This protection lasts even after the employment has come to an end if the victimisation is closely connected to the employment relationship.
Public authorities and equal pay
Public bodies have a legal duty (the Public Sector Equality Duty or PSED) to have due regard to the need to eliminate unlawful discrimination when making decisions and in their other day-to-day activities. This includes discrimination in pay. The duty also requires them to have due regard to the need to advance equality between men and women.
Public authorities in England and Wales
Listed public bodies in England and Wales are also required by specific duties to publish objectives at least every four years that might help them to achieve their obligations under the PSED. This may include an objective that focuses on the causes of any differences in pay between men and women.
Listed public bodies in England are also required to publish information annually to demonstrate their compliance with the PSED. For bodies that employ 150 or more people this includes information relating to their employees.
Public authorities in Scotland
The Equality Act 2010 gives specific duties that are applicable to the public sector in Scotland.
These regulations require listed public authorities with 150 or more employees to publish a statement on equal pay including its equal pay policy every four years.
Read our guidance booklet on the public sector equality duty in Scotland.
Last updated: 02 Aug 2018