Discrimination: equal pay

Overview 

The Equality Act 2010 makes it unlawful for employers to discriminate between men and women in their pay and conditions where they are:

• doing the same or similar work
• work rated as equivalent
• or work of equal value.

The Act applies to both men and women but does not give anyone the right to claim equal pay with a person of the same sex - any comparison must be with a person of the opposite sex. In Northern Ireland the Equal Pay Act 1970 (Amendment) Regulations (Northern Ireland) 2004 provides for equal pay between men and women.

If you believe you are being paid differently to a colleague due to another 'protected characteristic' (including race or sexual orientation), please see our advice on discrimination. For example, there is an exception within the Equality Act 2010 which allows employers to implement pay structures for younger workers on the basis of the National Minimum Wage Regulations 1999.

Since 2018 organisations employing more than 250 staff have been required to publish data detailing their “gender pay gap”. The gender pay gap is the difference between the average hourly wage of all men and women across a workforce. If women do the majority of the less well paid jobs within an organisation than men, the gender pay gap is usually bigger.

Gender pay gap (GPG) is not the same as unequal pay. The size of the GPG is usually indicative of the (lack of) opportunities for promotion and progression within an organisation and the existence of a “glass ceiling” preventing women from occupying higher paid roles.

For this reason we believe that employers should check that if there are bars to progression - such as having to attain a certain qualification or level of experience before staff can progress - they must be genuine job requirements and all groups, regardless of gender, can progress.

Your employer may be able to justify an inequality in pay if they can establish that the difference is due to a genuine material factor other than a difference in sex. This must be a significant and relevant factor which is unrelated to gender differences and usually would be connected to the economies of running a business. The genuine material factor must be objectively justifiable and has to be in existence throughout the unequal contractual term period.

Any short-term factors would not justify unequal pay. For example, a scheme limiting payment of a shift premium to employees who worked night shifts was held to be lawful even though the scheme disadvantaged women (as they were less likely to be able to work at night). Night shift premiums were held in that situation to be justified as a proportionate means of achieving a legitimate aim, which was to encourage and reward '24/7 working'. The necessary cover could not be achieved if the premium was paid to staff working all types of shift.

If you believe your employer is acting unfairly, please take the following steps:

• contact us in confidence
• start gathering written evidence, such as your payslips and any local policies related to pay
• consider drafting a questionnaire to send to your employer (see below)
• check your employer's grievance policy
• if you believe you have enough evidence to proceed with a formal complaint/claim you should call us, before taking any action.

It is advisable to try and resolve any problems informally within the workplace. You may wish to consider a grievance if this is not possible. If you are concerned, contact us before taking any formal action.

If a grievance is not successful, legal action can be taken through the county court or through an employment tribunal.

There are strict time limits within which a claim must be brought before an employment tribunal, so please take further advice as soon as possible. If successful, the employment tribunal will order your employer to equalise your contractual terms with that of your comparator. You may also receive damages for the inequality of pay and conditions or they may offer arrears of the pay difference.

You should not suffer detrimental treatment because you are bringing or have brought an equal pay claim against your employer. The Equality Act 2010 forbids an employer, on penalty of unlimited compensation, from victimising you in any way for having taken an equal pay claim against them.

Contact us for advice if you are considering submitting an equal pay claim. 

See our further guidance on discrimination.

Equality and Human Rights Commission.

ACAS have also produced guidance: Asking and responding to questions of discrimination in the workplace