What do I have to prove to succeed with an equal pay claim?
If you wish to bring a claim under the equal pay provisions you must be able to point to a colleague of the opposite sex whose terms and conditions are different to your own. It is not sufficient for a hypothetical comparator to be used.
The comparator must be:
- Employed by the same or an associated employer
- Employed in a comparable job
What is meant by a comparable job?
A comparator must be someone who is either doing:
This applies where the work is of the same or a broadly similar nature. Any differences must be relatively unimportant and the actual tasks that are carried out must be compared, not what is actually contained in a job description.
'Work rated as equivalent'
This applies where a study or job evaluation scheme rates certain jobs as being equivalent according to different headings
'Work of equal value'
This applies where the effort, skill and demand required of people undertaking different jobs is the same. This is the hardest heading to bring a claim for equal pay under.
Can my employer defend an equal pay claim?
If you are able to show that you are paid less than a comparator doing “like work” or “work of equal value” then the Tribunal will assume that the reason for the difference is due to discrimination and an employer must then try and defend the claim.
An employer can defend a claim if they can prove on a balance of probabilities that any difference is due to a genuine material factor other than sex.
In the first 2 headings listed above, to defend a claim the employer must show a “material difference” between the individual and the comparator. A material difference can involve personal characteristics or other extraneous factors.
In an “equal value” claim the employer must defend the claim by showing a “material difference” or a “material factor.” To show a material factor the employer must show that the reason for the difference in pay is genuine and not due to the sex of the employees.
What happens if I succeed with my claim?
If you are successful with your claim for equal pay the Equal Pay Act will operate to insert an equality clause in your contract of employment. This means that each term that is less favourable will be amended to make it equal. You may also claim arrears of pay for up to 6 years prior to the start of the Tribunal proceedings.