Slightly oddly, the Equal Pay Act, and the updated provisions in the Equality Act, apply only to male/female pay differentials – in other words, gender equality only. It is against the law (obviously, I hope!) to pay a black worker less because she’s black, or a disabled worker less because of his disability, but that would have to be challenged as a standard discrimination claim.
The very specific, technical regime of Equal Pay law allows a broader comparison, designed to enable women to challenge the very deep-seated causes of (gender-based) pay equality. For example, a female cleaner could allege that she should be paid at the same rate as a male handyman. A female therapist could allege that should be paid at the same rate as a male chiropractor, and so on. When we say it’s a ‘very specific, technical regime’, we mean it. Getting your head around the rules – whether you want to make a claim or defend one – is up there with understanding Cantonese, Cloud Atlas or cricket (pick your nemesis).
Here’s a taster…
The equality comparison exercise applies to ALL contractual terms. It also requires equality between EACH term, not allowing an ‘overall package’ approach. So an employer might think, okay, he negotiated a higher salary, but she’s got a better car and a gym membership and we let her work from home on Fridays, so ‘it all comes out in the wash’. Unfortunately, no. In that example both the salary differential and the benefit discrepancies could form the basis for equal pay claims. The male employee could sue for having a worse car, no gym membership and not being allowed to work from home on Fridays. His female colleague could sue for having the lower salary.
Wages, pensions and contractual benefits all fall within the ambit of equal pay law, and all can be compared individually. All contractual terms of employment are up for grabs when it comes to gender equality.
What about discretionary or non-contractual benefits, I hear you cry! The answer is that they can’t be the subject of an equal pay claim, but they can be sued for as an (ordinary) sex discrimination claim. So there’s no ‘get out of jail free’ card for the employer if the employee is, for example, wanting to sue about a discretionary bonus.
If you have 250+ employees, we’d love to tell you about our bespoke Gender Pay Gap Audit & Advice service. Just get in touch and I will be happy to explain how we can support you.
Barrister, Menzies Law