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Equal pay - overview
The principle of equal pay for equal work is a fundamental part of European and domestic law. It derives principally from Article 157 of the Treaty on the Functioning of the European Union (ex Article 141 of the Treaty of Rome) and has been implemented into domestic law primarily by the Equal Pay Act 1970. However, certain claims for equal pay, in particular those relating to non-contractual benefits, may instead be brought under the Sex Discrimination Act 1975.
A claim, other than one referred by a court, will not be considered by a tribunal unless presented on or before a 'qualifying date'. The qualifying date will depend on whether the case is:
a 'concealment case' (where the employer has deliberately concealed relevant facts)
a 'disability case' (where the employee was at the relevant time a minor or of unsound mind)
a 'stable employment case' (where the employee worked for some time in a stable employment relationship but without a contract of employment)
a 'standard case' (none of the previous categories)
The time limit for presenting a claim is six months from:
the discovery of the relevant facts in a concealment case
the end of the disability in a disability case
the end of the stable relationship in a stable employment case
the end of employment in a standard case
There is no discretion to extend the time for presentation of a claim under the EPA 1970.
There is also a limit on the period for which arrears of pay or damages may be awarded; this is determined by the 'arrears date'. This again depends on the category into which the case falls, and the categories are defined slightly differently for the 'arrears date' than for the 'qualifying date'. Generally, the period is limited to six years before the claim was presented to the tribunal but, in concealment and/or disability cases, the period may be different. Where refusal to allow access to a pension scheme is alleged, claims may in theory go back to 8 April 1976.
For further information, see Equal pay time limits.
Effect of dispute resolution procedures
NB as of 6 April 2009, the statutory dispute resolution procedures have been repealed. They are, however, subject to transitional provisions.
Where they continue to apply, the statutory dispute resolution procedures are potentially important to the bringing or defending of any equal pay claim. The grievance procedures are likely to apply. Where they do, if a claimant fails to send a grievance to his employer at least 28 days before presenting his tribunal claim, the claim will be rejected. Failure by either party to complete any relevant statutory dispute resolution procedure will affect the amount of compensation awarded.
Who can claim
The right to equal pay applies to men and women who are employed at any establishment in Great Britain. The definition of 'employed' for these purposes extends wider than employees and includes, for example, certain self-employed individuals who are contracted to execute work personally.
The EPA 1970 also applies in general to office-holders, Crown employees, parliamentary staff and the military. It also applies to some overseas employees.
Employees who have undergone, are undergoing or intend to undergo gender reassignment surgery have a right to equality of pay under the SDA 1975 rather than the EPA 1970. Claims for infringement of this right should be brought under the SDA 1975.
Part-time employees are also entitled to equality of pay under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
For further information, see Eligibility to claim equal pay.
Types of pay
Pay has a broad definition for the purposes of TFEU Article 157 (ex Article 141 of the Treaty of Rome) and, therefore, for the EPA 1970. It generally includes any benefit, whether in cash or kind and whether immediate or future, that the worker is entitled to receive from his employer, whether directly or indirectly, by reason of the existence of the employment relationship. It can include contractual and non-contractual benefits. The EPA 1970 also expressly protects certain aspects of maternity-related pay.
For further information, see Definition of 'pay' in equal pay claims.
How claims work
The EPA 1970 works by implying an equality clause into the contract of every employee covered by its provisions. An equality clause is, in essence, a clause giving the employee the right to be paid equal pay for equal work.
An equality clause generally takes effect:
where the woman is employed on 'like work' with a man in the same employment, or
where the woman is employed on 'work rated as equivalent' with that of a man in the same employment, or
where the woman is employed on work which is, in terms of the demands made on her (such as in terms of effort, skill and decision), of 'equal value' to that of a man in the same employment
The effect of an equality clause is to equalise the pay of a woman (or man) where that pay would otherwise be less favourable than that of a comparable man (or woman).
For further information, see Types of equal pay claim.
Evidence and procedure
Employment Tribunals usually follow the same procedure for hearing cases where 'like work' and/or 'work rated as equivalent' are alleged as for other tribunal claims. It would seek to identify the issues it had to determine in the usual way and the parties would seek to bring documentary and/or witness evidence on those issues.
However, there is a special procedure where 'equal value' is alleged, under the EPA 1970 and Sch 6 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. This sets down an indicative timetable for the progress of the case and is intended to reduce cost and delay in the proceedings. The special procedure also gives the tribunal power to appoint an independent expert from a panel of experts designated by ACAS. The expert may be appointed:
to prepare a report for the tribunal on whether the work of the claimant and of her chosen comparator is of equal value
(if required) to assist the tribunal in establishing the facts on which the report should be based
For further information, see Evidence in equal pay claims.
Even if a claimant is able to establish like work or work rated as equivalent or work of equal value, the employer may still escape liability is he can show that any difference in treatment was genuinely due to a material factor other than gender difference. A material factor is generally one that was causally relevant to the difference in pay.
The traditional view of the domestic courts and tribunals has been that 'genuinely due to' requires an employer only to show that the material factor relied on is not a sham or pretence. On this view, objective justification for the difference in pay is only required where the factor relied on is itself tainted by direct or indirect sex discrimination.
There are conflicting domestic authorities on this point but the ECJ has ruled that objective justification is required in every case, whether or not the material factor is itself tainted by discrimination.
For further information, see Equal pay defences.
Claims for infringement of rights conferred by the EPA 1970 are generally brought before an employment tribunal.
A typical equal pay claim would be one brought by an employee alleging an infringement of her (or his) rights under the EPA 1970. Other matters under the EPA 1970 may in certain circumstances be raised by an employer, by the Secretary of State, on referral by a court or by the Equality and Human Rights Commission (EHRC).
If a claim is successful, the claimant would ordinarily be awarded the difference between the pay they in fact received and the pay their comparator received. Non-economic losses, such as injury to feelings, are not recoverable. Interest may be awarded on any sums recovered.
For further information, see Equal pay remedies and interest.
The procedure for equal pay claims, as all other tribunal claims, is governed by the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.
Equal pay claims are brought in the same way as other claims and claims involving like work and/or work rated as equivalent are dealt with according to the ordinary rules of procedure.
The procedure for statutory questionnaires in equal pay claims is generally as for other discrimination claims.
Special procedures, apply where an equal pay claim raises a contention that the claimant's work was of equal value to that of a male comparator:
Equal value procedure
A two stage equal value procedure is set out in Schedule 6 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 which is intended to reduce costs and delay in equal value cases. The procedures include provision for appointing independent experts to assist the tribunal in determining issues relating to equal value.
For further information, see Tribunal equal pay procedure and Equal Value rules (pre-Equality Act 2010).
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