The Law

In this section EqualPayPortal takes you to the European Union and British equality instruments and the guidance associated with them. You will also find information on the obligations on public bodies in Scotland and Wales.

The European Union

The principle that women and men are entitled to equal pay for doing equal work is grounded in European Union law. British domestic law must conform to European Union law, which imposes specific obligations in respect of equal pay which can have direct effect. So, in considering equal pay claims under the Equality Act 2010,  British courts and tribunals must take into account the relevant provisions of the Treaty, relevant Directives and decisions of the Court of Justice of the European Union (formerly the European Court of Justice). If domestic law does not give full effect to these rulings then a woman may be able to rely on European Union law in British Courts.

The Treaty of the Functioning of the European Union

Article 157 of the Treaty of the Functioning of European Union, formerly Article 141 of the EC Treaty, sets out the principle of equal pay for equal work.

Equal Treatment in Employment and Occupation

Directive 2000/78/EC of 27 November 2000, establishes a general framework for equal treatment in employment and occupation, including pay.

The Code of Practice

There is also a Code of Practice on the Implementation of Equal Pay for Work of Equal Value for Women and MenAlthough this dates back to 1996, the practical steps it recommends are still valid. 

Britain

The Equality Act 2010

The Equality Act 2010 replaces the previous anti-discrimination laws with a single Act. It simplifies the law, removing inconsistencies and making it easier for people to understand and comply with it. The majority of the Act came into force on 1 October 2010. The Equality Act 2010 gives women (and men) a right to equal pay for equal work. It replaces previous legislation on equal pay, including the Equal Pay Act 1970, the Sex Discrimination Act 1975, and the equality provisions in the Pensions Act 1995.

The provisions relating to equal pay are known as ‘the equality of terms’ provisions and are scattered throughout the Act, but are brought together in the Equal Pay Statutory Code of Practice.    

The EHRC has also recently issued a supplement to the Code.

MAKE SURE YOU ARE USING THE CORRECT VERSION OF THE CODE. PREVIOUS VERSIONS ARE STILL ON THE WEB. IF IN DOUBT ASK THE EHRC.

Filing an equal pay claim

Guidance on filing a claim can be found on the Justice website, but prospective complainants 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 the claimant within two working days. Acas will briefly explain Early Conciliation and ask the claimant some basic questions about the claim. This might cause the claimant to reconsider or Acas might conclude that they can’t help. In most cases however the claim will be passed to an Acas conciliator. They can talk to the claimant (or someone on their behalf) and someone from or on behalf of the employer the claimant is intending to take to tribunal. Their job is to talk through the issues with both parties to see if a solution can be found.

To lodge a claim in an employment tribunal, a woman will need to pay a fee, or apply for fee remission. That fee (or fee remission application) has to be sent at the same time as she sends her claim to the Employment Tribunal Service. The Ministry of Justice has produced a Factsheet on fees. Equal pay claims attract fees at the higher level, currently set at £250 to issue a claim, and £950 for a hearing. Cheaper rates apply to groups of complainants. The Tribunal will have the power to order the unsuccessful party to reimburse the fees paid by the successful party.

NB Legal challenges have been made in relation to the introduction of fees , in both England and Scotland. These did not affect the introduction of fees on 29 July 2013 and applicable fees must be paid from this date.  Both the initial and second challenges have failed, but the matter is being appealed to the Supreme Court and is unlikely to be heard before summer 2015.   

Employment Tribunal or Civil Court?

Equal pay claims are normally heard by the Employment Tribunal. The Employment Tribunal is an independent judicial body established to resolve disputes between employers and employees over employment rights, including equal pay. The Supreme Court has held that if the time limit for bringing a claim in the Tribunal has passed, equal pay claims can be heard in the ordinary courts (i.e. a county court or the High Court) rather than the Employment Tribunal. In 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.

Employment Tribunal claims must 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. Anyone in any doubt as to which court to apply to should seek legal advice.

Equal pay awards and remedies

If an Employment Tribunal upholds an equal pay claim, the Tribunal may

  • make a declaration as to the rights of the woman and/or her employer in relation to the claim brought. For example, 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 woman’s contract, and
  • order the employer to pay arrears of pay or damages to the person who has brought the claim.

The Employment Tribunal may make a declaration even if it decides not to award any compensation. Unlike in a claim of sex discrimination, an Employment Tribunal cannot make an award for injury to feelings. In England and Wales, the Tribunal can award arrears of pay or damages going back not longer than six years before the date that proceedings were started in the Employment Tribunal. In Scotland, the Employment Tribunal can award arrears of pay or damages going back not longer than five years from the date that proceedings were brought in the Employment Tribunal.  As in other discrimination cases, equal pay awards can be made subject to interest. An award of arrears of pay will generally only attract interest for about half the arrears period. Interest will be calculated as simple interest accruing day to day in accordance with prescribed statutory rates, currently 8 per cent.

HMRC has issued a leaflet for employers on the tax implications of awards of arrears of pay.

In cases involving occupational pension entitlements, an Employment Tribunal may make a declaration as to the rights of the parties concerned. Where an Employment Tribunal makes a declaration about the terms on which a member of an occupational scheme must be treated, the employer must provide such resources to the scheme as are necessary to secure that person’s rights without further contribution by her or any other members.

The  procedure for hearing equal value claims

When the provision for equal pay for work of equal value was introduced into the equal pay legislation, a separate Employment Tribunal procedure specifically for hearing equal value claims, was set out. The procedure has been amended on several occasions and it is necessary to take account both of the original Regulations and all of the subsequent amendments. The Employment Tribunals (Equal Value) Rules of Procedure, Schedule 6 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) set out the  original Tribunal procedures for equal pay for work of equal value claims. You can find the Regulations here. These have been amended by the Equal Pay Act 1970 (Amendment) Regulations 2004  and the Equality Act 2010 (Commencement No 4, Savings, Consequential, Transitional, Transitory, and Incidental Provisions and Revocation) Order 2010

Asking the employer about equal pay

Up until the 6th April 2014 there was a statutory questionnaire for prospective complainants to use to question an employer about any pay disparity between the complainant and a colleague of the opposite sex who they think is doing equal work. The questionnaire has now been abolished, but a complainant will still be able to write to her or his employer asking the same questions that they would have put in the questionnaire.

An Acas Guide helps employees decide what questions to ask and assists employers in responding.

For complainants, the Equality and Human Rights Commission also provides a detailed list of suggested questions:  How to use the Questionnaire procedure in cases of sex discrimination in employment . Follow the link and go to pages 51 to 55. Even though the questionnaire procedure has been repealed, the questions can still be asked.

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

Equal pay for equal work

Women (or men) can claim equal pay with colleagues of the opposite sex where they are 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 is makes on the jobholders (known as ‘work of equal value’).

Modifying the contract of employment

Where a woman is doing equal work with a man in the same employment, the Equality Act 2010 automatically implies a sex equality clause into her contract of employment, modifying it where necessary to ensure her pay and all other contractual terms are no less favourable than the man’s. The fact that the right to equal pay is grounded in contract law as well as in anti-discrimination legislation safeguards a woman’s right to equal pay in the future, and also gives rise to a six-year entitlement to back-pay (five years in Scotland).

Defending an equal pay claim

There are a number of possible defences for an employer faced with an equal pay claim:

  • That the woman is not doing equal work with the man with whom she is comparing herself.
  • That the man with whom she is comparing herself is not in the same employment as she is.
  • That the work being done by the woman and the man 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 provides an employer with an automatic defence against a claim for equal pay for work of equal value, and if the woman wishes to challenge the scheme (in other words, if she wishes to claim that the scheme has discriminated against her) she 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 her sex. The 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 the woman and her comparator; it is material: that is, significant and relevant, and it does not involve direct or indirect sex discrimination. Personal differences between the workers concerned, such as experience and qualifications, may be material factors. Other examples of possible material factors are: geographical differences, for example London weighting, unsocial hours, rotating shifts and night working. Whether the defence is made out will depend on the specific circumstances in each case. If the material factor accounts for only part of the variation in pay, the woman is entitled to a pay increase to the extent that the defence is not made out.

Obligations on public sector bodies across Britain

Section 149 of the Equality Act 2010 provides for the general public sector equality duty. This requires public authorities to have due regard to the need to:

  • eliminate discrimination, harassment and victimisation;
  • advance equality of opportunity between people who share a protected characteristic and those who do not; and
  • foster good relations between people who share a protected characteristic and those who do not.

The duty covers all the protected characteristics including sex, and therefore covers equal pay between women and men.

The Equality and Human Rights Commission is responsible for assessing compliance with and enforcing the Equality Duty. The Commission has powers to issue compliance notices to public bodies that have failed to comply and can apply to the courts for an order requiring compliance. The Equality Duty can also be enforced by judicial review. This can be done by the Commission or any individual or group of people with an interest.

A guide, Public sector: quick start guide to the public sector equality duty   has been issued by the Government Equalities Office.

Technical guidance on the Public Sector Equality Duty

The Equality and Human Rights Commission has produced a suite of  Technical Guidance to explain the duty, outline the requirements of the Equality Act 2010 and the specific duty regulations and provide practical approaches to complying with the Public Sector Equality Duty in England, Scotland and Wales. The Commission states that the guidance provides an authoritative, comprehensive and technical guide to the detail of the law.

Technical Guidance on the Public Sector Equality Duty England (Word)

Technical Guidance on the Public Sector Equality Duty Scotland (Word)

Technical Guidance on the Public Sector Equality Duty Wales (Word)

Differences across England, Scotland and Wales in respect of equal pay

While the general duty applies to England, Scotland and Wales, the specific duties are devolved to the Scottish and Welsh Assembly Governments, and this results in differences across the three nations in the obligations on public bodies in respect of equal pay. In particular, public bodies in Scotland and Wales must consider pay gaps across all of the protected groups and not just between women and men.

Equal pay and public bodies in Scotland

The Scottish Parliament has issued The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 setting out the obligations on public bodies in Scotland.

Equal pay and public bodies in Wales

The Welsh Assembly Government has issued The Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 setting out the obligations on public bodies in Wales.

Getting hold of case decisions

It can be difficult for people who are not lawyers to get hold of case decisions. In theory all judgements are publicly available, but in practice they can be difficult and sometimes costly to access. Employment Tribunal decisions, while available from the Registry of Judgments (see below), are not routinely reported because unlike cases decided on appeal, they set no legal precedent.  While some decisions cover much the same ground, others can make useful reading, particularly for reward managers and other equal pay practitioners,  as they give a steer as to what tribunals expect from an employer in terms of implementing equal pay in the workplace.

The following paragraphs offer suggestions as to how to get hold of judgements both at Employment Tribunal level and on appeal, but note that almost all sources require a case name. If you need information about judgements on a regular basis you may find that taking out a subscription to a specialist journal is the most efficient way for you to obtain this.

Getting hold of Employment Tribunal decisions, England and Wales

  • The Registry of Judgements – if you know the name of the case

If you know the names of the parties in the judgement you are looking for, you can get a copy either by going in person to the tribunal regional office in Bury St Edmunds, or by sending a cheque for £10 and naming the judgement you want a copy of. Additional copies are available at a cost of £5 per copy. You will need to provide the names of the parties, the case reference number, the tribunal office where the case was heard, and your address and telephone number

The address to write to is: Registry of Judgments, 1st Floor 100 Southgate Street, Bury St Edmunds, Suffolk, IP33 2AQ. Telephone:  0845 795 9775 (9am to 5pm, Monday to Friday)

  • The Registry of Judgements – if you do not know the name of the case

If you do not know the name of the case, or want to look at equal pay judgements in general, you will need to go to the Bury St Edmunds office in person and ask to see the Public Register. However, as the Register is not indexed by grounds of claim, and as judgements in equal pay claims are few in number, it can take a couple of days or more to find what you are looking for. You will need to interrogate the data base using relevant search terms, such as equal pay, bonus payments, equality of terms, private sector, public sector, and so on.

Getting hold of Employment Tribunal decisions, Scotland

In Scotland the Public Register of Judgements is held in Glasgow and the process for getting hold of a copy of a judgement is the same as for England and Wales.

The address to write to is: Central Office of Employment Tribunals (Scotland), The Eagle Building, 215 Bothwell Street, Glasgow, G2 7TS.Telephone: 0141 204 0730

  • Alternative sources for Employment Tribunal judgements

Law firms may put the judgements or summaries of judgements of cases that they have been involved in on their websites, so if you know the name of the case, a web-search may come up with the decision.

For a summary of past employment tribunal decisions on equal pay cases in the private sector only, read Equal Pay Cases and Pay Audits , a report for the Government Equalities Office by Incomes Data Services. The report contains a useful appendix of case summaries.

Getting hold of Employment Appeal Tribunal Judgements

Employment Appeal Tribunal judgements in equal pay cases are available from the Justice website. As with Employment Tribunal decisions, you will need to know the name of the case you are interested in. Copies of judgments which have been transcribed, but are not on this website may be obtained from HM Courts and Tribunals Service London office. There is a copying charge of £10 for one judgment and £5 for each additional judgment requested at the same time.

The address to write to is:  Employment Appeal Tribunal, Second Floor , Fleetbank House , 2-6 Salisbury Square , London  EC4Y 8JX . Telephone:  020 7273 1041 (9.00 -16.00 Monday to Friday)

The Courts of Appeal or Session, the Supreme Court and the Court of Justice of the European Union

For cases heard in England and Wales, the judgements section of the Judicial Office website usually lists decisions within 48 hours of the judgment being handed down, but the British and Irish Legal Information Institute (BAILII) is by far the most comprehensive and accessible source of judgements and covers Scotland as well. BAILII also enables you to access judgements from the Court of Justice of the European Union.

For cases heard in Scotland, the Judiciary of Scotland site summarises key Scottish decisions.

Commercially available information about judgements in equal pay cases

Equal Opportunities Review is the best source of information on equal pay cases, not only because its focus is solely on discrimination issues, but also because it summarises  noteworthy Employment Tribunal decisions. With a fully searchable website, holding an extensive archive of all 200 issues, Equal Opportunities Review offers its subscribers accurate, authoritative and up to date set of information. Judgements in equal pay cases appear in the case reports section of the journal, and also in the annual publication, Discrimination: A Guide to the Relevant Case Law, which is issued free to subscribers. Case reports include an assessment of the implications of the case.

Equal Opportunities Review’s sister publication Equality Law Reports, providescase reports on all areas of discrimination law.

Industrial Relations Law Reports offers up-to-date and accurate full-text law reports, and is comprehensively indexed. Coverage is fast (usually within 48 hours of a judgement being handed down) and includes  the most significant employment law cases.

IDS (Incomes Data Services) provides subscribers with information and analysis across the employment field, through a range of publications, online resources, conferences, training and research in several areas, including pay, employment law and diversity.

Freely available commercial information on key decisions

Many leading law firms and human resource or employment consultancies offer free email newsletters which may provide summaries of and commentary on key decisions. Look for firms specialising in equal pay, discrimination and employment law.

Last updated 18th December 2014