Bringing a claim

On this page you will find out how to take an equal pay claim. The page is written for women wanting to bring a claim, but employers faced with a claim may also find it useful. And of course, men as well as women are entitled to equal pay for equal work, so if you are a man wanting to claim equal pay with a woman, then this page is for you too.

Please note that EqualPayPortal cannot advise or assist you with your claim, so please do not email asking for advice. If you do need advice, call  Acas on 0300 123 110

You may find the information easier to take in if you print off a hard copy. Read through the whole section before deciding what action you want to take, and bear in mind that filing a claim with the Employment Tribunal or a civil court should be a last resort and you will be expected to have tried to sort the matter out with your employer before making a claim. You will find alternatives to taking a claim further down this page.

Helping yourself to keep track of what you do

Get a folder in which to keep:

  • Copies of any correspondence between you and your employer;
  • All the information that you obtain from your employer and others;
  • Notes of any meetings you attend in relation to your claim. You may need them to refer back to, and will certainly need them if you do eventually have to go to a Tribunal;
  • If you do file a claim with the Employment Tribunal, copies of your application form, and all subsequent correspondence between you and the Tribunal;
  • Any other material relevant to your claim.

File everything in date order; it will save you time later on if you do this now. Buy some ‘post it’ stickers and use these to remind you of any deadlines, or of what to do next – for example: expect reply from boss by 20th May; or, copy this to Tribunal.

Your entitlement to equal pay

If you want an outline of the law, perhaps to read through before a meeting with a solicitor or someone else who is advising you, please go to the page on  The Law.

The Equality Act 2010 replaced previous legislation on equal pay, including the Equal Pay Act 1970. The Equality Act 2010 gives women (and men) a right to ‘equal pay for equal work’. The provisions relating to equal pay are known as ‘the equality of terms’ provisions and are also set out in the Equal Pay Statutory Code of Practice.  Although the code is aimed at employers, if you are thinking about making an equal pay claim, it would be useful for you to read it.

Pay

Pay includes not only basic pay, but also overtime pay, non-discretionary bonuses, holiday pay, occupational pensions, and, where these are provided as part of your terms and conditions of employment, benefits such as a company car, health insurance, free meals, and so on. If you want to claim equality in respect of a discretionary bonus, you can bring a straightforward discrimination claim – you do not need to claim under the equality of terms provisions.

Equal pay for equal work

The fact that a man you are working with is getting paid more than you are doesn’t necessarily mean you are entitled to equal pay with him. You must be doing work that is equal to the work he is doing and, even then, it’s possible that there’s a legitimate reason for him getting more than you do – he might be better qualified than you, for example, or be hitting performance targets that you are failing to reach.

You can claim equal pay with a man ‘in the same employment’ and doing:

  • Work which is the same or broadly similar (known as ‘like work’)
  • Work rated as equivalent under an analytical job evaluation scheme ( known as ‘work rated as equivalent’), or
  • Work which is different but which is of equal value in terms of the demands it makes on the jobholders (known as ‘work of equal value’).
Equal value

Jobs are of equal value when aspects of the jobs, such as the amount of physical or emotional effort involved, the skills required, or the levels of decision-making are equivalent. Examples of equal value set out in the code of practice on equal pay include:

  • The work of a cook and that done by a joiner, a painter and a thermal insulation engineer.
  • The work done by women employed as packers and that done by a labourer.
  • The work done by female sewing machinists and that done by male upholsterers,
  • The work done by women speech therapists and that done by male pharmacists and occupational psychologists.

Employment Tribunals determine each case on its own facts. A decision of equal work in one case does not automatically mean that a Tribunal will find equal work in another case where similar jobs are being compared.

Your comparator

It’s up to you to choose who you want to claim equal pay with. If you want, you can claim equal pay with more than one man – you might, for example, want to claim equal pay with two men doing two different jobs – but bear in mind that this will make your claim more complicated. The man, or men, you compare yourself with are known as your ‘comparators’. Your comparator doesn’t have to be working at the same time as you – he could be the person who did the job before you did.

Your comparator does not have to support your claim, or even agree with it, but at some point in the process you will have to name him. You cannot simply claim that your employer generally pays women less than men.

Your employer can disagree with your choice of comparator,  but cannot make you change it.

Your comparator must be in the same employment

Your comparator must be employed either by your employer, or by an associated employer (for example, a parent company), at the same establishment or workplace. This does not mean that you and your comparator have to work on the same site. A woman working in a local authority office, for example, could claim equal pay with a man doing equal work who is employed by the same local authority, but in a different office, or in a different location.

Your comparator can also be employed by the same or an associated employer, but at a different establishment or workplace, provided that both you and your comparator are on common terms and conditions. A woman could claim equal pay, for example, with a man working at a different workplace, who is doing equal work and whose pay is determined by the same collective agreement.

Defending an equal pay claim

The explanation that your employer gives for why they think you are not entitled to equal pay with your chosen comparator is known as ‘the employer’s defence’. Possible defences include:

  • That you and your comparator are not doing equal work
  • That your comparator is not in the same employment as you
  • That your work and that of your comparator has been rated as unequal under a non-discriminatory analytical job evaluation scheme. Using an analytical job evaluation scheme to evaluate jobs across the workplace gives your employer an automatic defence against a claim for equal pay for work of equal value, and if you want to challenge the scheme (in other words, if you want to claim that the scheme has discriminated against you) you will have to convince the Tribunal that the scheme is biased against women.
  • That the difference in pay is due to a material factor which has nothing to do with your sex. Your employer must identify the factor(s) and prove that: it is the real reason for the difference in pay and not a sham or pretence; it causes the difference in pay between you and your comparator; it is material: that is, significant and relevant, and it does not involve direct or indirect sex discrimination. Personal differences between you and your comparator, such as experience and qualifications, can be material factors. Other examples of possible material factors are: geographical differences, for example London weighting, unsocial hours, rotating shifts and night working. Whether your employer’s defence convinces the Employment Tribunal that you are not entitled to equal pay will depend on the specific circumstances in each case. If the material factor accounts for only part of the variation in pay, you will be entitled to a pay increase to the extent that the defence is not made out.
Asking your employer about equal pay

Up until the 6th April 2014 there was a statutory questionnaire that you could use to question your employer about any pay disparity between you and a man who you think is doing equal work. The questionnaire has now been abolished, but you will still be able to write to your employer asking the same questions that you would have put in the questionnaire.

Acas has produced guidance to help you decide what questions to ask. Follow this link and go to pages 15 – 19 of the Acas Guide. When you read the guide remember that you are ‘the questioner’.

If you do eventually decide to take a case to an Employment Tribunal, you can use the replies you get back from your employer as part of your evidence at Tribunal. The information provided in response to your questions will help you to establish the key facts, and to present your claim in the most effective way.

You can deliver your letter in person or send it by post. If you send it by post, use the recorded delivery service, as this will provide you with evidence of delivery. If you deliver the letter in person, write ‘delivered by hand’ and the date on the top of the letter.

Be sure to (a) keep a copy of your letter (b)obtain proof of posting. Keep these and any replies safely in your folder.

Time limits

You can make an equal pay claim at any time while you are in the job in respect of which you are claiming equal pay. If you move to another job, either within the same organisation, or because you have left the company, you must file a claim within six months of leaving the job, unless you did not know that you were not getting equal pay. If you find yourself in this position – having found out that you might have a claim after the time limit has expired, please do seek legal advice – see below on where to get help.

You will need to bear these time limits in mind while you explore other means of resolving your equal pay issue. If meetings with your employer are eating into the time limit, you may need to file a claim so as to secure your position. If you do need to do this, explain to your employer that you are filing a claim in order to safeguard your legal position.

It is your responsibility to ensure that your claim is filed on time, so do not leave it until the last minute – better too early than too late.

Out of time and for a good reason?

In the case of Birmingham City Council v Abdulla & others 174 (predominantly female) claimants, who were former Council workers, brought claims for equal pay in the High Court. They did so because they were out of time to launch claims in the Employment Tribunal as more than six months had passed from the date of termination of their employment, and while they had been in employment they had been unaware that men doing comparable work were being paid more than they were.

This decision means  that if the time limit for bringing a claim in the Tribunal has passed it may be possible for an equal pay claim to be heard in the ordinary courts (i.e. a County Court or the High Court) rather than the Employment Tribunal. Employment tribunal claims have to be brought within six months of the date of termination of employment, whereas contractual claims in the County/High Court have a much longer limitation period of six years from the date of the breach of contract.

If you think this may apply to you, please get professional advice – call the Acas Helpline 0300 123 110, go to your union, or make an appointment with a solicitor.

Equal pay without going to a Tribunal

Making a claim to an Employment Tribunal should be a last resort and you will be expected to have tried to sort the matter out with your employer before making a claim.

Sorting things out with your employer is possible, even on an issue as complex as equal pay. Don’t assume your employer is unwilling to resolve the problem. Unless your employer knows about your concerns, they cannot put things right. Check your employer’s policies and procedures on pay, on equality and diversity and on raising a grievance. These will tell you what to expect and how to raise your concerns.

  • An informal solution

You can raise your complaint informally, by discussing it with your line manager, or by talking to someone from your human resources or personnel department and asking them for an informal view. Think about what you would like the outcome of the meeting to be. At this early stage you are unlikely to get immediate agreement to give you equal pay, but it’s reasonable to expect a considered response within a week or so. Also think about what you’re going to say. You’ll need to explain what the problem is, and set out what you would like to happen next. You may find it helpful to talk through what you intend to say with the Acas Helpline 0300 123 110.

Tell your employer that you are concerned that you are getting a lower rate of pay (or no bonus, or whatever the payment is) than male colleagues; say that you think your work is equal to theirs, either because it’s the same or broadly similar, or because you think are doing equal work. Don’t get emotional, and don’t criticise your colleague’s performance – equal pay is not about performance, it’s about job demands. Don’t expect an immediate response, but make clear that you would like to hear your employer’s side of the story.

If your manager isn’t interested, or doesn’t know what to do, ask to speak to whoever is responsible for deciding what the rates of pay are across the organisation. You can follow up your request in writing, asking for a response by a particular date. If you do write, be sure to date it, and give your name and employee reference number, if you have one. Keep a copy of your letter in your folder.

Make a note of what is said – what you say, as well as what your manager or others involved say. Keep all your notes and copies of all letters, emails, memos and so on, in date order in your folder.

  • A formal grievance

If you and your employer can’t sort things out informally, your next step could be to make a formal, written grievance. Get a copy of your employer’s grievance procedure. This should tell you how your employer will deal with your complaint including:

  • to whom you should send your written grievance
  • who will investigate your complaint and how long this will take
  • when you will get a decision from the employer

If your employer does not have a grievance procedure, or will not give you a copy of it, you should still put your complaint in writing.

  • Writing a formal grievance letter

Send your employer a brief letter saying that you wish to make a formal grievance. Attach a statement to your letter giving the details of your grievance. Keep your statement brief, unemotional and to the point. Number the paragraphs and keep the paragraphs short. If possible, type your statement.

  • Say that you are making a formal grievance
  • Give your name and your employee reference number, if you have one
  • Describe your employment in date order, beginning with your current job and how long you have been in post. State your current rate of pay
  • Describe the pattern of hours that you work, for example ‘I work a forty hour week from 8.00 – 17.00’, or, ‘I work 20 hours a week, Tuesday to Thursday’
  • Describe your job and the skills it requires
  • As best you can, set out your comparator’s employment details and hours of work and describe the demands of their job
  • Say why you think your job is just as demanding as your comparator’s, for example, ‘I think that the men in the warehouse are getting more money per hour than I am getting for working on the production line; if they are getting more, then I would like to know why you think what they do deserves a higher rate of pay. As far as I can see, my job makes just as many physical demands on me as theirs does on them, but my job is mentally more demanding – I have to keep an eye open for faulty products.’
  • State clearly that you think the difference in pay between you and your comparator amounts to pay discrimination – if you do not do this your employer may think that you are just asking for a pay rise; you are not, you are asking for your legal entitlement to equal pay for equal work.
  • Say what you have done to try to resolve matters before making a formal grievance
  • Ask for a written acknowledgement that your grievance has been received

It’s a good idea to ask a friend or trusted colleague to read through your statement before you send it. It’s also a good idea to wait a day or two before you send it, and read it through again before you do so – leaving it for a while means you are more likely to notice any mistakes, or things you’ve left out. Keep a copy of your grievance statement and letter in your folder.

  • What happens when your employer receives your grievance?

Your employer will usually arrange a meeting to discuss your grievance. If you need any adjustments made to help you take part in the grievance meeting, ask for these before the meeting. You have a legal right to take someone to the grievance meeting with you. You could take a trade union representative or a work colleague along.

At the close of the meeting, you should be told what will happen next. Your employer may want to investigate further before making a decision. For example, your employer may want to check out the salary and skill set required for your job and that of your comparator; they may want to carry out an evaluation of the two jobs, or they may even want to carry out a full-scale job evaluation across the whole workforce.

Keep an open mind. You may find that you agree with your employer’s reasons for paying your male comparator more than you. Your employer may offer you additional training or new opportunities that would lead to you getting equal pay within a reasonable period of time.

Your employer will tell you when you can expect a decision from them on whether or not they think you are entitled to equal pay.

  • What next?

If your employer agrees to give you equal pay, well done! You may have to wait a few weeks, so make sure you get the agreement to give you equal pay in writing and keep this in your folder.

If your employer does not agree that you should get equal pay, there are other routes short of a tribunal case that you can try.

Mediation

Sometimes a neutral third party can help you and your employer reach an agreement. A mediator might come from outside the organisation or from within it, depending on the circumstances. You can find more information on registered workplace mediators at www.civilmediation.org for England and Wales or www.scottishmediationregister.org.uk for Scotland.

Where you can get help

Get help as early as possible, even with raising your grievance. If you prepare your grievance thoroughly, you are more likely to get a good result.

Acas

The Acas Helpline is for both employees and employers who are involved in an employment dispute or are seeking information on employment rights and rules. The Helpline provides clear, confidential, independent and impartial advice to help you in resolving your equal pay claim. Call the Helpline 0300 123 1100.

A trade union or advice service

You can get advice from a trade union if you are a member, or from services such as  Citizens Advice.

The Equality Advisory Support Service

The Equality Advisory Support Service is aimed at individuals who need more expert advice and support on discrimination than advice agencies and other local organisations can provide. This suggests that if you need advice on equal pay you should in the first instance contact either Acas or your local advice centre. The Service is funded by the Government Equalities Office and replaced the helpline formerly run by the Equality and Human Rights Commission.

The Equality Advisory Support Service  gives advice to individuals across the whole of Great Britain on discrimination issues. It  explains legal rights and remedies within discrimination legislation, across the three nations. It explains options for informal resolution and helps people to pursue them. It  refers people who cannot or do not wish to go down this road to conciliation or mediation services. It will help people who need or want to seek a legal solution by helping to establish eligibility for legal aid and if they are not eligible, to find an accessible legal service or to prepare and lodge a claim themselves. The Equality Advisory Support Service  works collaboratively with the organisations from whom it receives referrals and where the individual consents, lets them know the outcome of cases they refer. The service  works closely with the Equality and Human Rights Commission, referring on potential test cases and sharing information to inform the Commission’s wider work on equality.

Contact details:

09:00 to 20:00 Monday to Friday      10:00 to 14:00 Saturday       Closed on Sundays and Bank Holidays

Household insurance

If you have household insurance, check your policy to see if it includes legal protection insurance and what the upper limit is. You may be eligible for legal advice and representation through your insurance policy, but this will probably be capped at a certain amount, say £20,000. Discuss with your legal adviser whether this is likely to be enough to cover all the costs of taking a claim.

Finding a solicitor or advice centre

You can find a solicitor through the Direct Gov web page on finding legal advice; enter your post code and tick the box marked ‘employment’. A list of advice centres and law firms in your area will appear. When you call or email one of these to make an appointment, explain that you are considering taking an equal pay claim and want to talk to someone with experience in dealing with equal pay.

Whoever advises you will talk through the options open to you and may help you deal directly with your employer. It is possible to get some advice from a solicitor without asking them to represent you at the Employment Tribunal, so at this stage you won’t be committing yourself to the full cost of representation

The Employment Tribunal

Early conciliation

You must seek advice and early conciliation from Acas before commencing a claim. A woman making an equal pay claim to the Employment Tribunal has to notify Acas first by completing a simple Early Conciliation notification form. Acas aims to contact you within two working days. Acas will briefly explain Early Conciliation and ask you some basic questions about the claim. This might cause you to reconsider or Acas might conclude that they can’t help you. In most cases however your claim will be passed to an Acas conciliator. They can talk to you (or someone on your behalf) and someone from or on behalf of your employer. Their job is to talk through the issues with both parties to see if a solution can be found.

Employment Tribunals deal with legal disputes in the workplace. They hear cases which have not been resolved by the other means outlined above. The decisions made by Employment Tribunals are legally binding on your employer and on you.

An Employment Tribunal is less formal than a court hearing. The Tribunal is intended to be a place where claimants like you can present their own cases, but as equal pay claims can be complicated, most women are represented by a lawyer or by a trade union official.  Cases are usually heard by a panel of three people, a legally qualified employment judge, and two non-legal or ‘lay’ members with experience in dealing with employment problems from the point of view either of employers or of employees. All three are completely independent. Their judgments are based on the law, on evidence from you and from your employer and on their view of the arguments put to them by you and your employer. You and your employer and any witnesses will have to give evidence under an oath or affirmation, and if you lie you can be convicted of perjury. The Employment Tribunal can order you to pay costs (known as expenses in Scotland) if it thinks you or your representative has behaved ‘unreasonably’ during the case.

Sometimes the Employment Judge will hear the case alone – for example, to identify which issues in your equal pay case will be dealt with at the full hearing,  or to get an agreement from you and your employer as to what evidence will be produced and by when.

  • Filing an equal pay claim

Guidance on filing a claim can be found on the Justice website, but you must talk to Acas before commencing a claim.

To make a claim of equal pay you will need to complete the ETI claim form. Your claim must be on the approved form provided by Employment Tribunals. Read the Guide on Completing an Employment Tribunal Claim before you complete the form. You can find the form and guidance here

 By law, you must tell the Employment Tribunals:

  • Your name and address; it is essential to include your postcode;
  • The name and address of the respondent or respondents (the person or organisation against whom you are making a claim); and
  • The details of your complaint.

When you submit the PDF version of the form via the Employment Tribunals website and provide the correct postcode, it will be automatically sent to the correct Tribunal office. When a claim has been successfully submitted you will receive a receipt to confirm this.

It is your responsibility to ensure that the Tribunal office receives your claim within the relevant time limit, so if you do not receive a receipt notification within three or four days, you should contact the Employment Tribunal office and ask what has happened to your form. Keep a copy of your claim form in your folder.

Because equal pay claims usually need a hearing that lasts for several days, you may have to wait weeks or even months for your claim to be heard. You and your employer will both be informed of the hearing date, and you will be entitled to paid time off work for the hearing.

  • Employment Tribunal fees

At the time of writing, you no longer need to pay a fee to lodge a claim. This is because in July 2017 the Uk’s Supreme Court held that the fee regime, as it was then, was unlawful. It is likely that, at some future date, a new regime will be introduced. In the meantime:

  • New claims can be lodged without the claimant paying a fee; and,
  • Existing claims can proceed to a hearing without the claimant having to pay a hearing fee;

For those who have already paid tribunal fees, the Ministry of Justice has undertaken to reimburse fees already paid.  In October the Government announced the rolling out of a refunding scheme, initially through a 4 week trial process. Participants are being contacted directly by the Ministry of Justice, inviting them to take part. Employers who have paid out fees to claimants, as well as claimants, will be able to seek reimbursement and those reimbursed can also expect to recover interest on their fee payments at 0.5 per cent.

Once the pilot is concluded, the Government expects to issue guidance, including details of how the scheme can be accessed. Reimbursement will not be automatic and you will need to submit an  application. Anyone who wishes to register an interest in applying for a refund can do so by emailing ethelpwithfees@hmcts.gsi.gov.uk

 

  • Compensation

If you succeed in your claim for equal pay, then the Employment Tribunal may:

  • Make a declaration as to your rights and/or your employer in relation to the claim brought.For example, you may be awarded a pay rise to the level of the comparator’s pay (including any occupational pension rights) or the inclusion of any beneficial term not in the your contract, and
  • Order the employer to pay you  arrears of pay or damages

You may be entitled to back pay and interest for up to six years from the date you lodged your claim (five years in Scotland), provided you can show you were doing equal work for that period.

Protection against victimisation

You are protected against victimisation, not just while making a claim to the Employment Tribunal, but also while preparing your claim. If your employer takes action against you, by disciplining you or dismissing you, for example, for having discussed equal pay with a colleague, or trade union official, you can make a claim of victimisation. Your comparator and any other colleagues who may have been involved with your claim are also protected against victimisation.

Equinet handbook: How to build a case on equal pay

Equinet is the European Network of national Equality Bodies. This Handbook, prepared by members of Equinet’s Working Group on Gender Equality, aims to be a practical and useful tool for anyone who works on equal pay cases, guiding you to existing resources, data, and arguments that have been successful in the past.

The handbook is structured to help case-workers in equality bodies, lawyers or other legal professionals to build their case, but the resources contained therein should support and inform anyone looking to gain insight into the challenges and opportunities in litigating for equal pay. In addition, the handbook contains useful and hands-on information for anyone interested in and working on equal pay.

The handbook includes:

  • Checklists on what to ask claimants and respondents and how to gather data
  • Suggestions of external partners to work with when gathering information for your case
  • Information on how to shift the burden of proof
  • Tools to show the importance of transparent pay schemes for your case: gender neutral job evaluation schemes and wage calculators
  • Examples of cases handled by equality bodies in Europe
  • Links to relevant resources, tools, statistics and literature

You can download a copy of the handbook here.

Last updated 15th November 2017