What the Act says
Under the Equality Act 2010 (the Act) employees are legally entitled to equal pay with a person of the opposite sex where they are in the same employment and doing equal work.
There are three kinds of equal work:
- 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. For example, a woman cook preparing lunches for directors and a male chef cooking breakfast, lunch and tea for employees
- 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. For example, the work of an occupational health nurse might be rated as equivalent to that of a production supervisor when components of the job such as skill, responsibility and effort are assessed by a fair job evaluation scheme,
- 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. eg a clerical assistant and a warehouse operative..
It is important to really understand what is meant by each of these terms when setting an individual employee's pay, reviewing your organisation’s pay system or carrying out an equal pay audit. Keep in mind that, under the Act, seemingly very different types of jobs can actually be considered as ‘equal work’.
Comparing the work of women and men
A woman can claim equal pay for equal work with a man or men in the same employment. Broadly speaking, ‘same employment’ means that the woman and her comparator are employed by the same or an associated employer either at the same workplace or in different workplaces but under common terms and conditions. The man or men with whom she is compared is known as ‘the comparator’.
Under European Union law a woman may also be able 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 (such as where pay differences arise from a sector-wide collective agreement).
The equal pay provisions in the Equality Act 2010 apply to both men and women, - but as women are more likely to be paid less than men for equal work, the wording and examples in this guidance illustrate from the perspective of women’s disadvantage using a male comparator.
There are two stages involved in determining ‘like work’.
- You need to assess whether the woman and her male comparator are employed in work that is the same or of a broadly similar nature. This involves a general consideration of the demands of the work, such as the effort, knowledge and skills needed to do it.
- If the work is broadly similar you then need to assess whether any differences between their work are of practical importance, having regard to:
- the frequency with which any differences occur in practice, and
- the nature and extent of those differences.
To justify any difference in pay or other terms, the employer must be able to demonstrate that there are significant differences of practical importance in the work actually performed. For example, level of responsibility, skills, the time at which work is done, any necessary qualifications or training required, or the amount of physical effort involved.
A difference in workload doesn’t itself preclude a ‘like work’ comparison, unless the increased workload represents a difference in responsibility or other difference of practical importance.
‘Like work’ in practice
In the following examples, the employer sought to defend a difference in pay on the grounds that, although the work was broadly similar, it involved differences of practical importance. In each case, the differences were found not to be of practical importance in relation to pay. All of these were therefore judged to be ‘like work’ by the courts:
- a woman preparing lunches for directors and a man preparing breakfast, lunch and tea for employees, and
- male and female supermarket employees who perform similar tasks requiring similar skill levels, although the men may lift heavier objects from time to time.
Work rated as equivalent
A woman’s work is rated as equivalent to a man’s if a fair job evaluation scheme gives an equal value to the work in terms of the demands made on the workers, including effort, skill and decision-making.
Work is rated as equivalent if the jobs have been scored the same number of points or fall within the same job evaluation grade. The focus is on the demands of the job rather than the nature of the job overall. Seemingly quite different jobs may actually be equivalent when properly job evaluated.
Although not mandatory, the most reliable and objective approach you can take to assessing whether your employees are doing equivalent work or work of equal value is to use a fair job evaluation scheme.
What is a job evaluation scheme?
A job evaluation scheme is a method of systematically assessing the relative value of different jobs.
Job evaluation schemes must be fair - non-discriminatory and not influenced by gender stereotyping or assumptions about women’s and men’s work. Historically, there’s been a tendency to undervalue or overlook skills and other qualities inherent in work typically undertaken by women – for example, caring. A fair scheme will not allocate different points to jobs only because it values certain demands of work traditionally undertaken by women differently from demands of work traditionally undertaken by men.
If there is sex-bias in a points scoring system, this would be discriminatory, and would not prevent a woman showing that her work would be rated as equivalent to that of a male comparator under a fair job evaluation scheme.
More information on designing and implementing a job evaluation scheme is available from the Advisory, Conciliation and Arbitration Service (ACAS). Trade unions can also advise on job evaluation.
‘Work rated as equivalent’ in practice
- The work of an occupational health nurse might be rated as equivalent to that of a production supervisor when components of the job such as skill, responsibility and effort are assessed by a fair job evaluation scheme.
- A job evaluation scheme rated the jobs of female classroom teaching assistants and better paid male physical education instructors as not equivalent. This was because the study gave undue weight to the physical effort involved in the men’s jobs than it did to the intellectual and caring work involved in the women’s jobs. Because the job evaluation scheme had a sex bias, an equal pay claim may still be made.
Work of equal value
The third way a woman can claim ‘equal work’ with a man is if she can show that her work is of equal value to his, in terms of the demands made on her. This means that the jobs done by a woman and her male comparator are different, but can be regarded as being of equal value in terms of the demands they impose such as the:
- effort involved
- training or skills necessary to do the job
- conditions of work, and
- decision-making that is part of the role.
In some cases, the jobs being compared may appear broadly similar, such as a female head of personnel and a male head of finance. More commonly, entirely different types of jobs, such as manual and administrative, can turn out to be of equal value when analysed in terms of the demands made on the employee.
Although not mandatory, the most reliable and objective approach you can take to assessing whether your employees are doing work of equal value is to use a job evaluation scheme.
‘Work of equal value’ in practice
Examples of different jobs which were ruled to be of equal value by the courts include:
- clerical assistant = warehouse operative
- canteen workers and cleaners = surface mineworkers and clerical workers
- school nursery nurse = local government architectural technician, and
- head of speech and language therapy service = head of hospital pharmacy service.
Case law suggests that unless there is 'an overall measurable and significant difference' between the demands of the jobs being compared, they will be regarded as being of equal value. Small differences will not prevent the jobs from being equal in value.
In Wells & Others v F Smales & Son (Fish Merchants) Ltd 10701/84-10715/84, the tribunal found the jobs of all the applicants to be of equal value to the comparator even though the Independent Expert had said that five of the fourteen applicants were not equal, albeit by small margins. The tribunal said that the applicants scored so closely that the differences between them and the comparator were not relevant and made no material difference.
In Southampton and District Health Authority v Worsfold EAT 598/98, a speech therapist claimed that her work was of equal value to that of a male clinical psychologist who worked for the same employer. The Independent Expert found a points difference of less than 5% between the applicant and comparator jobs. The tribunal concluded that there was no measurable and significant difference between the jobs under consideration. Their conclusion was supported by the evidence of the Independent Expert who, under cross-examination, admitted that if he, as a manager, had been responsible for grading the jobs, the difference between them would not have led to any difference in grading.
A comparator can be used who does work of lesser value.
In Murphy v Bord Telecom Eireann  IRLR 267 ECJ, the European Court of Justice decided that the right to equal pay for work of equal value did not only apply to situations where the work was of exactly the same or very close value, but also applied to situations where the woman was being paid less for work of greater value. In such a situation you would have to give the woman parity with her male comparator, but you would not have to pay her more than him.
You cannot use a comparator who does work of greater value and claim a proportion of their pay
Equal value does not mean that a woman is entitled to a proportion of her comparator's pay, which is equivalent to the proportionate value of her job compared to his. For example, you would not have to pay a woman 70% of her comparator's pay on the grounds that her job is shown to be 70% of the value of his job.
Using more than one comparison
You should note that in terms of ‘equal work’, a woman can claim equal pay using any or all of the different methods of comparison described above. For example, a woman working as an office manager in a garage could claim ‘like work’ with a male office manager working alongside her and ‘work of equal value’ with a male garage mechanic.
Last updated: 06 Aug 2018