Women’s pay still lags behind men’s in many sectors, despite almost forty years of equal pay legislation. Simon Outten (SO) of leading law firm Steele Raymond clarifies your responsibilities and irons out one or two areas of uncertainty.

1. We’re recruiting a woman to do the job of a man who is retiring. Do we have to pay her what he was getting?

SO: No, but if you pay her less, you need to be able to justify the difference. It's up to you to prove that she is getting less for reasons other than her sex, rather than up to her to prove that her sex is the reason. If you cannot prove that there are other, adequate, reasons for the difference, you will be judged to be in breach of the Equal Pay Act. Such a material difference might include, for instance, the fact that her predecessor has much more experience, or higher qualifications, than she has.

2. If we have no-one doing a job similar to that of a female employee, do we need to worry about her making a claim under the Equal Pay Act?

SO: Yes. She does not have to restrict her comparisons to people doing work that is the same. It could be broadly similar, it could be rated as equivalent under a job evaluation scheme or it could be work which is different in nature, but demonstrated to be ‘of equal value’. ‘Equal value’ claims have succeeded where cooks compared themselves to carpenters, and speech therapists to clinical psychologists.

3. How does anyone decide whether work should be rated as equivalent?

SO: There must be a job evaluation scheme in place, of the kind that awards points for the various requirements of each job – so much for mental concentration, so much for physical effort, and so on. Such schemes are virtually unknown outside the top 1,000 companies, some big charities, the civil service and publicly-funded enterprises. But employees may still make a claim for doing work that is ‘similar’, or ‘of equal value’.

4. We have women and men doing the same job, but the women mostly work part-time. Surely that justifies different pay scales?

SO: No. You are now obliged to treat part-timers ‘no less favourably’ than those who are employed on a full-time basis. That means that if they are doing the same job they must be paid at the same rate and/or receive equivalent remuneration and benefits.

5. We have women and men doing similar jobs, but the men have to do some heavy lifting. Can we use that to justify different pay scales?

SO: Possibly, but it would mean having to rely on the “material difference” defence if a claim is made, and that can be difficult. It would principally depend on whether heavy lifting was actually necessary to getting the job done, and whether extra payments were required to get people who could do it.

And even if you can justify what you are doing under the Equal Pay Act, you might – depending on your recruitment practices – be vulnerable to charges of discrimination under the Sex Discrimination Act. Take legal advice.

6. Do we have to include benefits when we compare pay for our employees?

SO: Yes. All contractual benefits are covered under the Equal Pay Act, including:

• non-discretionary bonuses
• overtime rates and allowances
• performance-related bonuses
• sick pay
• access to the pension scheme
• severance and redundancy pay.

7. Do we have to include non-contractual benefits, like discretionary bonuses, in working out the comparison?

SO: Non-contractual benefits, such as discretionary bonuses, training and promotion are not covered under the Equal Pay Act, but they are covered under the Sex Discrimination Act. Awards under the Equal Pay Act are limited to the amounts that would have been paid, backdated by up to six years (five years in Scotland). Awards under the Sex Discrimination Act are potentially unlimited.

8. A woman who only joined us three weeks ago is claiming that she should be paid the same as a man doing the job. Can she do this?

SO: There is no minimum service requirement for making claims under the Equal Pay Act. Her chances of success will depend upon the extent to which the jobs are similar – does his, for instance, include any extra responsibilities, or require any extra experience? Take legal advice.

• Read about the Equality and Human Rights Commission’s campaign for reform of equal pay legislation.

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