Equality and Human Rights Commission

You must pay women and men doing equal work the same and give them the same benefits. The only exception to this is if you can show that there is a reason for the pay difference that has nothing to do with the sex of the workers. This is called the material factor defence and is explained in more detail at page The employer's defence of 'material factor'

Every womans contract of employment is automatically read as if it contains a term or clause which has the effect of making sure her pay and all other contractual terms are no worse than a mans where they are doing equal work. It does not matter if the contract is written down or not.

This applies to all the parts of the contract including:

• wages and salaries
• non-discretionary bonuses
• holiday pay
• sick pay
• overtime
• shift payments
• occupational pension benefits, and
• non-monetary terms such as holiday or other leave entitlements or access to sports and social benefits (for example, a gym membership if that is something the employees contract entitles them to).

Remember: if aspects of pay and benefits are not part of the employee's contract of employment, you must still not discriminate unlawfully against someone because of sex, but the special equal pay law and procedures do not apply. This includes purely discretionary bonuses, promotions, transfers and training and offers of employment or appointments to office.

For example:

A female sales manager is entitled under her contract of employment to an annual bonus calculated by reference to a specified number of sales. She discovers that a male sales manager working for the same employer and in the same office receives a higher bonus under his contract for the same number of sales. She would bring her claim under the equality of terms (equal pay) provisions.

However, if the female sales manager is not paid a discretionary Christmas bonus that the male manager is paid, she could bring a claim for unlawful sex discrimination rather than an equal pay claim because it is not about a contractual term.

There are three kinds of equal work. All of these require a woman to compare herself to a man in the same employment. He is called a comparator.

• The first is when a woman is doing work that is the same as or broadly similar to the work her comparator is doing. This is called like work.
• The second is when although their work is different, a job evaluation study shows that a mans and a womans jobs are rated as equal. This is called work that is rated as equivalent.
• The third is when the mans and womans jobs are different but are equal in value in terms of the demands or skills that are needed. This is called work of equal value.

If the jobs are exactly the same, it is easy to say this is like work. If they arent exactly the same, then you should consider the differences between them. If these arent of practical importance then the jobs are broadly similar and still count as 'like work' so the two workers should be paid the same.

For example:

Depending on the exact circumstances, these male and female workers could be considered to be doing ‘like work’:

Male and female drivers, where the men are more likely to work at week-ends.

A woman cook preparing lunches for directors and a male chef cooking breakfast, lunch and tea for employees.

Male and female supermarket workers carrying out similar tasks even though the men may lift heavier objects from time to time.

It is what happens in practice that counts. A contractual obligation on a male worker to do other duties does not count if these are not in fact carried out.

For example:

Men but not women workers do the same job, but under their contracts, only the men have to work compulsory overtime and can be required to transfer to different duties. This difference is not of practical importance if the flexibility is not called upon in practice.
 

Job evaluation is a way of systematically assessing the relative value of different jobs.

If you carry out (or get someone to carry out for you) a job evaluation study and this gives an equal value to the womans work and her comparators, then her work is rated as equivalent to the mans. The value of the work will be measured by looking at the demands made on the workers, using factors such as effort, skill and decision-making.

Because the focus is on the demands of the job rather than the nature of the job overall, jobs which may seem to be of a very different type can be rated as equivalent.

For example:

The work of an occupational health nurse might be rated as equivalent to that of a production supervisor when components of the job such as skill, responsibility and effort are assessed by a valid job evaluation scheme.
 

If a job evaluation study has assessed the womans job as being of lower value than her male comparators job, then an equal value claim by the woman will fail. It will only not fail if the Employment Tribunal hearing the claim has reasonable grounds for suspecting that the evaluation was itself discriminatory in the way it was carried out or in the measurement it used or that it was in some other way unreliable.

There has historically been a tendency to undervalue or overlook qualities inherent in work traditionally undertaken by women (for example, caring).

A job evaluation scheme which results in different points being allocated to jobs because it values certain demands of work traditionally undertaken by women differently from demands of work traditionally undertaken by men would be discriminatory.

A scheme like this will not prevent a woman claiming that her work may be equal to that of a male comparator.

For example:

A job evaluation study rates the jobs of female classroom teaching assistants and their better paid male physical education instructors as not equivalent. This is because the study gives more points to the physical effort involved in the mens jobs than to the intellectual and caring work involved in the jobs predominantly done by women. Because it uses a sex-biased points system, this job evaluation study would not prevent the women succeeding in an equal pay claim.

A woman may also bring a claim for equal pay where her job is rated higher than that of a comparator under a job evaluation scheme but she is paid less.

Detailed guidance on designing, implementing and monitoring non-discriminatory job evaluation schemes is available from the Equality and Human Rights Commission.

If you have not carried out (or got someone else to carry out) a job evaluation study, a woman can still claim equal pay with a man if she can show that her work is of equal value with his in terms of the demands made on her. Instead of the assessment being done by you as the employer as part of the job evaluation study, the assessment whether the work is of equal value takes place as part of the woman's claim to the Employment Tribunal.

Jobs being of equal value means that the jobs done by a woman and her male comparator are different but can be regarded as being of equal worth, having regard to:

• the nature of the work performed
• the training or skills necessary to do the job
• the conditions of work, and
• the decision-making that is part of the role.

In some cases, the jobs being compared may appear fairly equivalent (such as a female head of personnel and a male head of finance). More commonly, entirely different types of job (such as manual and administrative) can turn out to be of equal value when analysed in terms of the demands made on the employee.

More detailed guidance on how to tell if jobs are of equal value is available from the Equality and Human Rights Commission.