Would I Know If I Am Paid Equally?
to expect from your employer
a suitable comparator
you paid the same?
any 'reasons' for unequal pay
to expect from your employer
starting, it is worthwhile considering what to expect from
your employer. You may hope that they will do the right
thing by you if you point out they are doing something
wrong and against the law, but you may be surprised - not
just mildly surprised, but in some cases outrageously shocked.
used can include denial, delaying, ignoring, answering
a different question to the one you asked and even active obstruction.
There are many more but that should give you a flavour
of what to expect. Yes, cynicism rules - but this is based
on the writers own experience.
companies may be worse than others and you may not truly know
your company until you start this process - if you think
you work for a 'good' employer, ask yourself whether this
view is from before raising issues such as bullying
and equal pay. And let's face it, the fact that you are
suffering from bullying AND you believe you are not on
equal pay, how good are they really? Once you become a
'problem' for standing up for yourself and your rights,
you may see a very different side to them.
people suffer from an expectation gap between what they think their
employer will do and what they actually do - because
you may be a reasonable person you may expect the company
to have the same values, this idea itself is not always
reasonable! The bigger the difference between the two can
correlate to the extent your emotional
well-being is affected. Our best advice
is to expect the worse - and then at least
you will not be disappointed. Do not underestimate
the impact of their tactics on you emotionally.
Unless you prepare yourself for the worst, you may find
that you react quite negatively to each 'stunt' they pull.
This is difficult anyway but even harder if you are also
being bullied and suffering from a psychiatric injury,
such as depression.
further protect your emotional well-being, you may also
wish to use the same approach with your union, if you are
a suitable comparator
first thing to do is to identify a suitable comparator
of the opposite sex so you can test the
'equal' in equal pay - it is not the responsibility of
your employer or a tribunal to decide who this would be.
A suitable comparator would be doing the same or similar
job, 'like work', or be doing work of 'equal value' and
you may choose more than one comparator.
value would cover the demands of the job, even if the jobs
were vastly different. The demands of the job could mean
the skills, knowledge, mental and physical effort and responsibilities
required. In claims of equal value, it is best to choose
several comparators in different occupations if this is
possible, to ensure that at least one is suitable.
equal pay affects more women than men, although with the
bullying link it may affect either sex but the comparator
must always be of the opposite sex to you. If you
know of someone of the same sex that is paid more than
you, there is nothing you can do. (A way around this: find
a second potential comparator of the opposite sex who is
paid less than the comparator of the same sex, persuade
them to claim using your main comparator and if they are
successful, you then have a comparator of the opposite
sex! Hey, it's worth a try!)
not have to consent to being nominated a as
comparator, and it would be for your employer to approach
and communicate with them, if this is necessary.
on comparators The
scope of comparison
you paid the same?
out how much the comparator earns may be difficult as employees
do not always talk to others around them about how
much they earn. The EOC shows that of the Equal Pay Reviews
carried out by companies, 21% identified a pay gap and
also a fifth of employers do not ‘allow’ employees
to share pay information – is it a coincidence that
those figures are so similar? Could the companies be broadly
the same ones in each case? And why would an employee not
be ‘allowed’ to talk about their pay, when
it is not illegal to discuss your own private business
with whoever you choose to? It may just be convenient
for any employer who knows
there is a disparity in pay. Any company attempting
to restrict transparency in this way should be a big warning
sign to employees. Always ask yourself why this may be.
you do not know by talking to others and you wish to keep
things reasonably informal at first, you could write
a letter to your employer (don't do this verbally as
it could be denied at a later stage), noting that you believe
you are not paid equally and would like them to investigate.
Make sure that you quote in your letter that the Equal
Pay Act 1970 requires men and women to be paid the same.
This will ensure that your employer cannot claim ignorance
of a specific equal pay claim later on, possibly explaining
it away to a tribunal as a disgruntled employee complaining
about not earning enough.
the new Employment Act 2002, it is compulsory to exhaust
all methods, so your companies formal grievance procedure should
be used to make your complaint. Again, ensure that you
mention the Equal Pay Act 1970 and its requirements. Any
grievance decision may come back with a yes or no, you
are/are not paid equally. That is not the information your
require so it is always best to pre-empt this side-stepping
of the issue by making it clear in your grievance that
you would like not only the pay rates disclosed, but also
a full explanation for any difference. This should give
you enough information to either be satisfied or have enough
detail to take it to a tribunal.
a part of the bullying, you may have already applied for
a Data Subject Access Request under the
Data Protection Act. This may well give you plenty of information
that will help your case, although it is usual that all
non-consenting third part data is removed. There may still
be enough to give you the evidence you need. You may also
find some background information on the tactics used by
the company to fend you off.
the Equal Pay Questionnaire (EPQ) is the most likely
to provide you with all the information you need and follows
the format of the Sex Discrimination SD74 Questionnaire.
It was introduced in April 2003 and means that an employee
can ask a range of questions about themselves and a comparators
pay and related benefits, without having to make a
tribunal claim. The questionnaire covers a statement
on why the employee believes they are not on equal pay,
who they believe their comparators are, allows questions
to ascertain if they are receiving less pay to the comparators
and the reason why, along with asking if the company agrees
that they are doing like work or work of equal value to
the nominated comparator.
limit for the company to respond to the EPQ is 8
weeks and although it is voluntary, a tribunal can draw
inferences if they do not reply within that time without
a good reason. The company may not give some information
if it is deemed to be confidential, either to the company
or to a specific individual, as they also have to adhere
to the Data Protection Act and may give this as their
reason for withholding information. If this is their
response and the claim goes to a tribunal, the tribunal
can order this information to be disclosed, if it is
in the interest of justice. The recent Employment Appeal
Tribunal ruling in the Barton case ruled that pay and
bonus secrecy, lack of transparency and the serious failure
to deal with the questionnaire process should not be
any stage, you may wish to get ACAS involved
as an independent conciliator or for advice. ACAS are independent
and do not take sides, so do not expect them to - even
if you are convinced you are right. Having ACAS talk to
your employer on your behalf may make a difference in the
amount of information they give you or may even encourage
them to settle the matter without it going to a tribunal
- and by making all attempts to settle the matter amicably
is always seen as reasonable if the matter were to go to
Tribunal. Do remember that it is unlikely that you will
be able to recover any costs incurred in taking this claim
to a tribunal, so it is in your best interests to settle
the matter if it is possible.
is more information on the EPQ on the next
About the EPQ EPQ
Download (Word format) ACAS
any 'reasons' for unequal pay
section is kept separate from
possible defences, which we will deal with in the tribunal
section, as it is important to stop to consider
what you know up to now, whether you are satisfied with
it and whether you have a strong enough case to take the
claim further. Consider each one carefully:
have you found out what you needed to know?
you know what the comparators earn, including all related
you still consider that they are a true comparator after
the (hopefully) detailed response from the EPQ?
you are happy that one or more of the comparators truly
are a comparator and that you do not earn as much
what possible reasons could there be?
your company give you any indication as to why they pay
them more (if they acknowledged this)?
you consider whether someone is a comparator or not,
go by your own
knowledge, experience and instincts - many an employer
will deny they are but this may be another tactic to
put you off taking the matter to a tribunal. If they
that the comparator does a different job and have explained
why they think this, are you convinced?
they have given other reasons such as better performance,
consider whether performance is a criteria for basic
salary or is this dealt with in any profit schemes and
agree there is a difference in performance? Quite often
you may find that the reasons given may look good as
a defence and may appear aggressive, and when you look
into them, they just do not agree to how how your pay
is calculated or from what you know of your job and that
your comparator. If their reasons go against what you
know of the company policies on pay, ensure that you
get a copy
of each one to use as evidence.
lastly, after considering all these questions and you still
feel that there is an issue, what can you prove?
any answers given in an EPQ, you should roughly be able
tell what the defence would be if you went to a tribunal,
although you may not have served one or may not have
had a response back yet. If this is the case, consider
they may consider as their defence. They and their
solicitors will try to apply every defence that is possible,
if this is clearly not the case. For instance, they
may say that your job is not 'like work' due to the scope
responsibilities, even if you feel you were doing exactly
the same thing as your comparator. This is a standard
tactic to try to have as many bites at the defence cherry
the end of the day, the burden of proof is on the
employer for Equal Pay cases. Although they may
give lots of different defences, it will be up to them
to prove each one - but it is always worth considering
what evidence you have to disprove the defence, just in
case. Equal pay cases are not cut and dried, so you need
to cover all bases. Think about what they will
say is different about the jobs
and reasons for pay discrepancy, not just what you
think is the same.
you still feel that you are paid unequally, then see What
do I do now?