Equality and Human Rights Commission

In making a decision about an equal pay case, the Employment Tribunal has to assess the evidence about:

• whether the comparator is the right comparator (in other words, if he is in the same employment)
• the work done by the woman and her comparator
• the value placed on the work (sometimes with the advice of an Independent Expert), in terms of the demands of the jobs
• the pay or other contract terms of the woman and her comparator and how they have been arrived at, and
• the reasons for the difference in pay or other contract terms.

An Employment Tribunal can decide a complaint involving unlawful discrimination in a work situation.

This includes any equal pay case, including:

• claims relating to pay during pregnancy and maternity, and
• claims about equality in the rules of occupational pension schemes.

Employment Tribunals also hear claims about other workplace disputes, such as where someone is claiming unfair dismissal.

Members of the armed forces must bring a service complaint before they can bring a claim to the Employment Tribunal.
 

A six month time limit applies when:

• a person wants to bring a claim for a breach of an equality clause or rule, or
• they want the Employment Tribunal to make a statement about the effect of an equality clause or rule.

The six month time limit normally starts from the end of the persons employment contract. So if they are still in the same job, they can bring a claim at any time.

If:

• the employer conceals information from the person which would have told them that they were not getting equal pay, or
• the person bringing the claim has an incapacity
• the start of the six months is measured from a different point.

If the employer conceals information about the inequality in pay, the six months begins with the date when the person bringing the claim discovered (or could reasonably have discovered) the concealment.

For example:

A woman suspects that her male colleagues who do the same work are better paid. Her employer reassures her that she and her colleagues get the same salary but he deliberately does not tell her that the men also receive performance bonuses under their contracts. Her male colleagues refuse to discuss their pay with her. The woman only discovers the discrepancy between her pay and the mens when one of the men tells her 18 months after she ceases employment. Within six months, she makes an equal pay claim to a tribunal based on the value of the bonus payments she would have received if her contract had provided for them. Although the womans claim is made more than six months after her employment ends, she shows that her employer deliberately misled her into believing her salary was the same as the mens. She had no way of discovering the truth earlier. Her claim can proceed as a concealment case.

If the person bringing the claim has an incapacity, the six months begins on the date the incapacity ends. Has an incapacity means:

• in England and Wales that they are under 18 or that they lack capacity within the meaning of the Mental Capacity Act 2005, and
• in Scotland that they are under 16 or are incapable within the meaning of the Adults with Incapacity (Scotland) Act 2000.

For example:

A womans employment ends due to a mental health condition which results in her temporary loss of capacity to make decisions for herself. She could make a claim for breach of an equality clause to an Employment Tribunal but is not well enough to do so. The six month time limit will start when she recovers sufficiently to make a claim.

Members of the armed forces have nine months from their last day of service to make their application to the Employment Tribunal provided that they first raise a service complaint.

For example:

A former member of the armed forces wants to bring a claim about her terms of service. She first makes a service complaint and then brings a claim for breach of an equality clause in an Employment Tribunal. This claim would need to be brought within nine months of her period of service ending.

Equal pay claims may also be brought in the High Court and for this the time limit is six years (5 years in Scotland) from the alleged breach.

A woman claiming equal pay must prove facts from which an Employment Tribunal could decide that her employer has paid her less than a male comparator doing equal work. This means the woman must show that it is more likely than not that:

• she was employed to carry out equal work with a male comparator (who is a real rather than hypothetical comparator) in the same employment but
• her male comparator received better pay or other contractual benefits than her.

Once the woman has shown this, it is for her employer to show that it is more likely than not that the difference in pay and/or other terms is for a material reason other than sex or that the work is not, in fact, equal. If the employer can show this, they will have a material factor defence and the womans claim will fail.

However, if the woman demonstrates that the material factor relied on by the employer has a worse impact on women doing equal work to that of the comparator, the employer will need to objectively justify the material factor.

Where an Employment Tribunal has to decide if the claimants work and that of the comparator are of equal value, it can ask Acas to designate an independent expert to prepare a report on the matter.

Unless the tribunal withdraws its request for a report, it must wait for the experts report before deciding whether the work is of equal value.

If the tribunal does withdraw its request for a report, it can ask the expert to give it any documents or other information the expert has to help it make a decision.

If there has been a job evaluation study in relation to the work involved and the study finds that the claimants work is not of equal value to the work of the comparator, the tribunal is required to come to the same decision unless it has good reason to suspect that the study is discriminatory or unreliable.

For example:

A woman claims that her job is of equal value to that of a male comparator. The employer produces a job evaluation study to the tribunal in which the womans job is rated below her comparators job. The employer asks the tribunal to dismiss the womans claim but the woman is able to show that the study is unreliable because it is out of date and does not take account of changes in the jobs resulting from new technology. The tribunal can disregard the studys conclusion and can proceed to decide if the work of the claimant and comparator are of equal value.

If an equal pay claim is upheld, the Tribunal may:

• make a declaration as to the rights of the woman and/or her employer in relation to the claim brought.

For example:

a pay rise to the level of the comparators pay (including any occupational pension rights) or the inclusion of any beneficial term not in the womans contract

• order the employer to pay arrears of pay or damages to the person who has brought the claim.

There is no award for injury to feelings in an equal pay case.

In England and Wales, the Employment Tribunal can award arrears of pay or damages going back up to six years from the date that proceedings were brought in the Employment Tribunal. This is extended to the day on which the breach first occurred where incapacity or concealment applies.

In Scotland, the Employment Tribunal can award arrears of pay or damages going back up to five years from the date that proceedings were brought in the Employment Tribunal. This is extended to 20 years where the employee had a relevant incapacity or there was a fraud or error.

In cases about occupational pension entitlements, an Employment Tribunal can make a declaration as to the rights of everyone involved.

It can also order compensation, but the rules about this are complicated, so it is important to seek advice.

Where an Employment Tribunal makes a declaration about how a member of an occupational scheme must be treated, the employer must if necessary pay the scheme enough money to give the claimant what she is due, without any additional contributions having to be made by her or any other members.