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The principle behind equal pay law is that men and women should receive the same pay for doing the same work. This is achieved by implying a sex equality clause into contracts of employment.
Equal pay law has been in the news recently following the Employment Tribunal ruling in August that more than 3,500 Next retail workers should not have been paid less than warehouse operatives.
The claims were pursued on the basis that the retail workers, who are predominately women, ought to have been paid at the same rate of pay as their male counterparts working in the warehouse. It is possible for a claim to be defended by an employer demonstrating that any disparity in pay/other contractual clauses is due to a factor other than sex and Next defended the claims, arguing that the difference in pay was justified on the basis that, amongst other factors, salaries in the wider market are higher for warehouse workers.
The defence was rejected by the Tribunal, but Next has indicated its intention to appeal so the Employment Appeal Tribunal could decide differently. As things stand, the claimants are entitled to back pay dating back to when their claims were issued in 2018.
Since the Next ruling, the Employment Tribunal is hearing the third stage of an equal pay claim against Asda whereby 60,000 claimants are arguing that shop floor workers who are mainly women, should not be paid less than warehouse workers. Similar claims have also been issued against Tesco, Morrisons, Sainsburys and the Co-Op.
Each case is decided on its facts and as noted above, if an employer can demonstrate that any disparity is due to a material factor other than sex, a claim can be defended. It is also worth noting that any claimant will need to rely on an actual comparator and not a hypothetical one, as is allowed in direct discrimination claims.
Acas guidance suggests that employers should have an equal pay policy, as well as up to date job descriptions, to ensure that men and women who do the same work do not have different job titles and be consistent when deciding on pay and other contractual terms.
The Government’s reforms to workers rights are expected to be announced this month in the draft Employment Rights bill. In its manifesto, the Labour party committed to new legislation to extend equal pay rights on grounds of race and disability, and we will be posting updates on this when they are announced.