Duty to Provide Equal Pay for Equal Work

Employers in England and Wales have a clear legal obligation to provide equal pay for equal work under the Equality Act 2010. This obligation is designed to prevent discrimination - particularly on the grounds of sex - in how pay and contractual terms are set and applied. It applies across many pay elements and can give rise to significant legal claims and employment tribunal actions if employers fail to comply. This article explains the duty, how it operates in practice, how employees can make claims, and what employers can do to ensure compliance.

What Equal Pay Means

Equal pay law requires that men and women in the same employment performing equal work must receive the same pay and terms and conditions, unless an employer can justify a genuine material reason for any difference that is unrelated to the protected characteristic of sex. This duty is grounded in the Equality Act 2010 and aims to eliminate unfair discrimination in pay structures.

The obligation extends not only to salaries but to all contractual terms and benefits, including bonuses, overtime, sick pay, leave entitlements, pensions and other non‑salary benefits.

The Legal Basis: Equality Act 2010 Equal Pay Provisions

The primary legal framework for equal pay rights in the UK is the Equality Act 2010. The Act implies an equal pay term into every contract of employment, meaning that even where a contract does not expressly mention equal pay, the law treats it as part of the contract if the duties for equal pay are established.

Under the Act, an employee who believes they are being paid less than a comparator of the opposite sex for equal work can bring a claim to an employment tribunal. The law applies to employees, workers, agency workers, apprentices and some self‑employed individuals hired personally to do the work.

What Counts as “Equal Work”

To establish an equal pay obligation, the work performed must meet one of the following criteria:

• Like work - the jobs are the same or broadly similar in terms of duties and requirements.
• Work rated as equivalent - a formal job evaluation system shows the work is of equivalent value.
• Work of equal value - different jobs that are equally demanding in terms of skill, effort and responsibility.

Tribunals consider factors such as training, decision‑making, physical demands and working conditions when assessing equal value.

Pay and Contractual Terms Covered

Equal pay provisions cover a wide range of pay elements and contractual benefits. These include, but are not limited to:

• Basic salary or wages.
• Overtime and allowances.
• Pension contributions.
• Holiday and sick pay.
• Company car, healthcare and other benefits in kind.
• Performance‑related pay and bonuses.

The focus is on terms and conditions of employment that contribute to overall reward and status, not just basic pay.

Establishing an Equal Pay Claim

Identifying a Comparator

To bring an equal pay claim, the claimant must usually identify a comparator of the opposite sex who is employed by the same employer (or an associated employer) and is doing equal work but receiving better pay. The comparator must work in the same employment - meaning the same employer or group of associated employers - for the comparison to be valid.

Burden of Justification

If the claimant establishes that they and their comparator are doing equal work and the terms they receive are less favourable, the burden of proof shifts to the employer. The employer must show that any difference is due to a material factor unrelated to sex (for example, a genuine business need or a specific skill requirement), and not discriminatory.

Time Limits and Process

Time Limits

Equal pay claims typically must be brought to an employment tribunal:

• During employment, or
• Within six months of the date employment ends.

This time limit is strict, and missing it usually means the tribunal cannot hear the claim.

In some cases, because equal pay claims are treated as contractual disputes, claimants may pursue remedies in the civil courts for breach of contract, where longer limitation periods (up to six years) may apply. This requires legal guidance and careful consideration.

Early Conciliation

Before an employment tribunal claim can be lodged, claimants must notify Acas and engage in Early Conciliation, a statutory process aimed at resolving disputes without formal tribunal proceedings.

Remedies

Successful claimants can receive compensation, which may include:

• Back pay for lost earnings (often substantial).
• Interest on back pay.
• Adjustments to contractual terms to reflect equal rates going forward.

Employment tribunals may also order employers to conduct equal pay audits to identify and rectify unequal pay structures.

Defences and Justification

An employer can defend an equal pay claim by demonstrating that the pay disparity is due to a material factor unrelated to sex. Common legitimate reasons may include:

• The comparator has higher qualifications or experience that are genuinely required for the higher pay role.
• A market rate adjustment legitimately reflects local pay conditions.
• Differences in shift patterns, working hours or responsibilities that are objectively justified and proportionate.

However, tribunals will carefully scrutinise such explanations, and any justification that indirectly reflects discriminatory patterns (for example, length of service advantages that disadvantage those who took maternity leave) may fail.

Employer Responsibilities and Best Practice

Employers can reduce legal risk and promote fairness by:

• Conducting regular equal pay audits to identify and address disparities.
• Using objective job evaluation schemes to assess roles for equal value.
• Communicating pay structures transparently and consistently.
• Reviewing job descriptions and grading systems for bias.
• Training HR and managers on equal pay obligations and discrimination law.

Embedding equality into pay policies and practices reduces the likelihood of claims and supports workplace equity.

Risks of Non‑Compliance

Failing to provide equal pay can lead to:

• Employment tribunal claims, which can be costly in terms of compensation and legal fees.
• Significant back pay liabilities, as seen in high‑profile successful claims against local authorities and large employers.
• Reputational damage and loss of employee trust.
• Further discrimination claims, including claims of indirect sex discrimination arising from pay structures.

Common Questions

Does equal pay law apply to part‑time workers?
Yes. Part‑time employees cannot be paid less than full‑time comparators for equal work unless a genuine non‑discriminatory justification exists, as pay differences could also amount to indirect discrimination.

Can employers prevent employees discussing pay?
The Equality Act prohibits contractual terms that prevent employees from seeking or discussing pay information when it relates to equal pay issues. Pay secrecy clauses tied to unequal pay can be unenforceable.

Are equal pay rights limited to gender?
Currently, equal pay law specifically focuses on differences between men and women, although discussions and proposed reforms suggest potential expansion to other protected characteristics in future law reforms.

Key Takeaways

Under the Equality Act 2010, employers in England and Wales have a clear duty to provide equal pay for equal work for men and women in the same employment. This includes ensuring equality across salaries, bonuses, benefits and other contractual terms. Employers should evaluate roles carefully, justify any pay differences objectively, and engage in transparent and fair pay practices. Failure to meet these obligations can lead to employment tribunal claims, significant back pay liabilities and reputational harm. Regular pay reviews, audits and clear documentation support compliance and foster a fair workplace.