Creating a fairer Britain
The term 'like work' means work which is the same or broadly similar. Unless differences can be objectively justified, jobs which are the same or broadly similar should have the same pay, irrespective of whether they are done by a man or by a woman, by a white employee or by one from a different ethnic background, by an employee with a disability or by one with no disabilities.
If similar jobs are not to be regarded as like work, the differences must be of practical importance. Apparently dissimilar jobs can be seen as like work e.g. lecturers of different subjects within the same employment.
Pay means not just basic pay but also access to overtime, holidays, a company car and all other components of the pay package.
You can find out if there is a problem in your organisation by looking at the amount you pay to individuals doing the same or similar jobs, to men and women, people from different ethnic groups and those with a diability compared to those without, over the past year. If your records show that there is a tendency for people from one group to be favoured over another, then you need to find out why this happening and whether it can be justified.
Here are some examples of how organisations can become vulnerable to like work claims:
Female canteen workers preparing meals on behalf a factory's shop floor workers took an equal pay claim on the basis that they were doing like work with male colleagues. They compared themselves to two male cooks who made lunches for senior staff in the boardroom. The tribunal found no material difference in their jobs and the women were awarded equal pay.
Male nurses of Indian origin, who worked mainly at night, found themselves on lower grades than their white, female counterparts who worked mainly days, following a clinical grading review in the health service in the 1980s. Their jobs were re-graded when they showed that they equally met the criteria for the higher grade and threatened race equal pay claims.
The answers to the following questions can help you find out what lies behind any differences in pay:
Experience may, but does not always, justify a difference in pay. In one equal pay claim a female work-study engineer compared herself with a male work-study engineer. She had 2 years 7 months experience, compared to his 27 years but the employment tribunal decided that this made no material difference to the work they performed or how they performed it.
Generally speaking, shorter lengths of experience, where the difference in contribution or performance is clearly visible (for instance, the difference between a new starter and an employee with one, two or three years’ experience), are more likely to provide justification for differences in pay between employees doing 'like work' than longer periods of experience.
Have you checked that people are being appointed at the same point on the salary scale, unless they genuinely meet the criteria for a higher point on the scale? Appointing people at different rates of pay is one of the most common reasons for workers doing the same jobs getting different rates of pay.
Have you checked that employees progress through an incremental salary scale over a similar period of time? Slower progression for women, ethnic minority employees or those with a disability is another common reason for workers doing the same jobs getting different rates of pay.
... as opposed to what their job descriptions say they do. Keep job descriptions up-to-date and standardise job titles. This may seem like a lot of effort, but pays dividends in relation to other people management functions, as well as pay.
Even when workers do like work, different working patterns may cause differences. It is sometimes hard to compare different groups or realise the impact of certain allowances on individual pay. How many different components of pay do you have? If the answer is many, a harmonisation exercise may reduce risks of pay inequalities and simplify the pay structure to the benefit of all.
It is important to keep an overview of the total picture on pay, not just the policy but also the practice. This is especially important if similar work is being done on different sites, if there is local recruitment, or if there are a number of additions to pay.
People working alongside each other doing like work should be paid the same, or on a pro rata basis. Workers working unsocial hours, for example, should receive the same additional payment for the hours worked, irrespective of whether they are full-time or part-time. However, there is a distinction between overtime and unsocial hours – overtime does not have to be paid to part-timers until they have exceeded the normal working week.
It makes good business sense for employees to understand why they are paid as they are. It is also good risk management, because if you should ever be challenged in employment tribunal documentation will be essential. Properly documented decisions will enable you to explain your reasons.
A transparent pay system is one where employees understand not only their rate of pay but also the components of their individual pay packets. The similarity between two jobs may not always be apparent to an employer. A transparent pay system avoids uncertainty and perceptions of unfairness and reduces the possibility of individual claims.
Whilst every effort has been made to ensure that the advice given in this note is accurate, only the courts or tribunals can give authoritative interpretations of the law.
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