Equal pay: can you claim against the same sex?
Thanks to wide media coverage and reporting requirements for larger companies, the gender pay gap has narrowed over the last decade. However, the gap is far from closing entirely and as a result, equal pay claims remain a last resort for employees who believe that they are being unfairly paid.
Being paid less or more than someone of the opposite sex with the same job as you can equate to an equal pay claim. But what happens when it’s someone of the same sex? Our employment law solicitors explain in this blog.
What are the criteria for an equal pay claim?
The Equality Act 2010 is in place to achieve equality, including equality between men and women in pay and other aspects of employment. Within the Equality Act, there is a sex equality clause that is designed to ensure equivalence of terms between the employee and their comparator.
If you have found out that a colleague (the comparator) is being paid more or less than you, and you are not able to resolve the problem with your employer (this should be your first port of call), you may be able to claim for equal pay compensation.
To make an equal pay claim, the comparator must be:
- The opposite sex to you; and
- Doing equal work for the same employer or ‘associated’ employer.
What is equal work?
If a male and female are performing ‘equal work’, they are entitled to equal pay. Equal work includes:
- Where a male and female are doing ‘like work’ (the same or similar jobs), e.g. Admin Assistants of the opposite sex working in different departments but for the same organisation.
- Where a male and female are doing ‘work rated as equivalent’ using a fair job evaluation. This could be because the required level of skill, responsibility and effort are equivalent.
- A male and female doing work of ‘equal value’; this is where the job is not the same but has the same level of requirements when it comes to effort or decision-making. For example, a waitress and a hotel porter.
The equality clause applies where someone is employed to do work that is equal to the work of a comparator of the opposite sex.
Does equal pay apply to the same sex?
The equality clause within the Equality Act 2010 is not aimed at achieving equality between all workers. This means that you cannot start an equal pay claim if you discover a colleague of the same sex and with the same job is being paid more or less than you. This applies to both men and women.
What can you do if you’re being paid less than someone with the same job as you?
Two employees doing the same or similar job can have different pay (or contractual benefits), as long as the employer can justify it. The employer must be able to show that the difference is due to a material factor, such as location, e.g. one worker is based in London (where the cost of living is higher) and one in Devon, or working hours, e.g. day shift vs. night shift.
If you are satisfied that the above does not apply and you believe that you should be paid the same as your colleague, you can consider whether the failure to pay the same for equal work is unfair and explore whether you wish to remain at an organisation that pays such different rates of pay to their workers.