Equal Pay – can you defend the pay gap?

With women earning on average 14.2% less than men per annum the potential for equal pay claims is huge. David Cameron recently said “Opportunity is nothing without equality” as he announced steps to remove barriers to success in the workplace. These steps include :

  • Forcing larger employers to publish information about their bonuses for men and women and extending plans for gender pay gap reporting.
  • Announcement is part of a wider plan to help women and black minority ethnic (BME) groups across Britain as part of this government’s determination to extend opportunity to all.
  • Extend plans for gender pay gap reporting beyond private and voluntary sector employers to include the public sector.
    Work with business to eliminate all male boards in the FTSE350.

As an employer what can you do about this?

Are your employees paid equal rates for work of equal value? If not, are you in a position to defend an equal pay claim?

Consider whether the work done by the complainant is of equal value to that of the person they are comparing themselves against (the comparator). There are various factors that may establish a valid defence against such a claim including past performance, seniority, length of service, differences in the work, different hours of work etc.

If pay does vary, the reason put forward by the employer for the pay differential must not be a “sham or pretence” and they must also not be sex discriminatory.

A Tribunal would look at whether there is any objective justification for the differences in pay and employers may be required to answer questions proposed by the employee in relation to the claim.

There is no general principle of law that information about pay is confidential. Often there is no express confidentiality clause in the employment contract and this is especially true if pay rates had been collectively bargained.

The Data Protection Act can be circumvented by the pursuit of a legitimate interest in connection with any actual or prospective legal proceedings or is otherwise necessary for the purposes of establishing, exercising or defending legal rights. Arguably, the employer should inform the comparator about the disclosure in order to satisfy the principle of “fair processing”.

If you require any advice in relation to the issue of equal pay please contact :
Anne Tyson at E Rex Makin & Co, Whitechapel, Liverpool L1 1HQ. Tel no: 0151 709 4491. Email: employment@erexmakin.co.uk.

For further information about equal pay please see www.theguardian.com/law/employment-law.