Most employers think they do not have a problem with equal pay, yet men working full-time still earn 18% more than women working full-time. Part, at least, of the pay gap must be due to sex discrimination. Clearly some employers are burying their heads in the sand. Awareness of rights to equal pay amongst employees and willingness to bring claims appears, however, to be increasing particularly in the public sector where a “cottage industry”, similar to that which arose in relation to disrepair claims, is developing. Equal pay claims in employment tribunals are rising, against a national trend of a drop in overall tribunal claims. Employers, including housing associations as well as local authorities, continue to ignore the possibility of a problem at their peril.

Equal pay for equal work

The Equal Pay Act 1970 gives a person the right to receive equal pay and contractual benefits to a person of the opposite sex, in the same employment, who is doing equal work, unless the employer can show that the difference in pay is genuinely due to a material factor that is not the difference in sex. If a woman succeeds in an equal pay claim, her pay and contractual benefits are immediately increased to the level of her comparator's. She is also entitled to claim back pay with interest for the difference in pay for up to six years before the date on which she made her claim to the employment tribunal.

Employers who acquire employees by operation of the Transfer of Undertakings (Protection of Employment) Regulations 1981, for example under large scale voluntary transfer, should be aware of the possibility that a transferred employee could still have the right to claim equal pay by comparison with someone in the transferring organisation if she had that right before the transfer, because an "equality clause" which levels up her pay to that of a comparator doing equal work is part of her contract that transfers with her.

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