Equal pay - the law and best practice
Understand your legal responsibilities under the equal pay legislation and follow best practice advice
Despite what the name suggests, equal pay legislation is only concerned with sex discrimination in pay and in other contractual terms and conditions.
In Northern Ireland, sex discrimination in pay is prohibited by European Law and by three separate but related domestic statutes:
- the Equal Pay Act (NI) 1970
- the Sex Discrimination (NI) Order 1976
- the Pensions (NI) Order 1995
There are sound business and legal reasons for implementing equal pay between men and women. Pay systems that are transparent and value the entire workforce send positive messages about an organisation's values and ways of working. Fair and non-discriminatory systems represent good management practice and contribute to the efficient achievement of business objectives by encouraging maximum productivity from all employees.
This guide explains how you can make sure you are paying male and female employees equally.
Equal pay law overview
How domestic equal pay law protects the rights of employees to receive equal pay for equal work
The principle that women and men are entitled to equal pay for doing equal work is embedded in domestic and European Union law. Pay is defined broadly under European Union law and includes pensions.
Article 4 of the recast Equal Treatment Directive requires that 'for the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated'.
Equal pay legislation
In Northern Ireland the Principle outlined in article 4 of the Directive is implemented through the following three pieces of law:
- The Equal Pay Act (NI) 1970 requires employers to pay men and women equal pay for equal work. It prohibits sex discrimination between employees in respect of their contractual pay and terms and conditions of employment.
- The Sex Discrimination (NI) Order 1976 prohibits sex discrimination in relation to non-contractual entitlements to benefits.
- The Pensions (NI) Order 1995 prohibits sex discrimination in relation to employees' access to pension schemes, and in the way they are treated under the rules of such schemes.
All workers have a right to equal pay with a person of the opposite sex doing like work, work of equal value or work rated as equivalent.
The equal pay provisions in the Equal Pay Act (NI) 1970 apply to all contractual terms, not just those directly related to remuneration, such as holiday entitlement.
Although the law on equal pay may seem complicated, its purpose is simple - to ensure that where women and men are doing equal work for the same or an associated employer, they should receive the same rewards for it. Therefore, any references to a woman in this guide apply equally to a man claiming equal pay.
Equal pay does not exist in isolation from other equality areas and if an employer wishes to address unequal pay effectively, it has to be as part of a broader approach to equality.
It is worth noting that there are differences in the legal provisions that apply to sex discrimination in pay compared with discrimination in pay based on the other equality grounds. It is not the purpose of these guidance notes to focus on those differences but to summarise the key principles underpinning equal pay legislation.
Sex equality clause
A woman doing equal work with a man in the same employment is entitled to equality in pay and other contractual terms, unless the employer can show that there is a genuine material reason for the difference which does not discriminate on the basis of her sex.
Where there is equal work, the law implies a sex equality clause automatically into the woman's contract of employment, modifying it where necessary to ensure her pay and all other contractual terms are no less favourable than the man's.
Where a woman doing equal work shows that she is receiving less pay or other less favourable terms in her contract, the employer will have to show why this is the case. If the employer is unable to show that the difference is due to a genuine material factor which has nothing to do with her sex, then the equality clause takes effect.
These equal pay provisions apply to all contractual terms including wages and salaries, non-discretionary bonuses, holiday pay, sick pay, overtime, shift payments, and occupational pension benefits, and to non-monetary terms such as leave entitlements or access to sports and social benefits.
What is equal work?
How the terms 'like work', 'work rated as equivalent', 'work of equal value' and 'pay' are defined
Under the Equal Pay Act (NI) 1970 an employee has a right to equal pay with any employee of the opposite sex, known as 'comparator', who is doing work that is either:
- the same or broadly similar, provided that where there are any differences in the work these are not of practical importance, known as 'like work'
- different, but is rated under a job evaluation scheme as being work of equal value, known as 'work rated as equivalent'
- different, but of equal value in terms of factors such as effort, skill and decision-making, known as 'work of equal value'
The comparator must be in the 'same employment' as the claimant. This means they are employed by the same or an associated employer at the same workplace, or by the same or an associated employer at a different workplace as long as common terms and conditions apply.
The law thus provides for three types of equal pay claim.
1. Like work
There are two questions to ask when determining 'like work':
- whether the woman and her male comparator are employed on work that is the same or broadly similar
- whether any differences between her work and that done by her comparator are 'of practical importance', taking into consideration the frequency with which any differences occur in practice, and the nature and extent of those differences
It is for the employer to show that there are differences of practical importance in the work actually performed. Differences such as additional duties, level of responsibility, skills, the time at which work is done, qualifications, training and physical effort could all be valid.
2. Work rated as equivalent
A woman will be entitled to equal pay with a man where her work is rated as at least equivalent to the work that he does under an employer's job evaluation study in terms of the demands made on the workers, by reference to factors such as effort, skill and decision-making.
A job evaluation study will rate the demands made by jobs under headings such as skill, effort and decision-making. Studies must be non-discriminatory and not influenced by gender stereotyping or assumptions about women's and men's work.
3. Work of equal value
A woman can 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. This means that the jobs done by a woman and her comparator are different but can be regarded as being of equal worth, taking into account the nature of the work, the training or skills necessary to do the job, the conditions of work and the decision-making that is part of the role.
Equal value claims thus raise the possibility of making comparisons across traditional job boundaries.
Definition of pay
For the purposes of equal pay claims, pay has been widely defined to include:
- basic pay and salary
- performance related pay
- contractual bonuses
- contractual benefits including holiday pay, sick pay, occupational pensions and concessionary travel for family members
- premiums paid for shift working
Choosing a comparator for equal pay claims
How a female employee can choose the colleague or colleagues she wants to be compared to
The Equal Pay Act (NI) 1970 requires a claimant to identify an actual comparator in the same employment. A woman can claim equal pay for equal work with a male colleague or colleagues (known then as a comparator). It is for her to choose the colleague(s), although she does not have to identify them by name at the outset.
The selected comparator could be representative of a group of workers or he could be the only person doing the particular type of work.
The female employee may choose more than one comparator and multiple comparators may be necessary for a term-by-term comparison of her contract. However, an industrial tribunal can strike out a claim with a particular comparator, or could in exceptional cases require a claimant who unreasonably cites too many comparators, to pay some costs.
The chosen comparator does not have to be working at the same time as the woman, so he may for example be a predecessor in the job. It cannot be a successor or a hypothetical person.
A comparator in the same employment
For an entitlement to equal pay for equal work to exist, the comparator must be employed by the same employer as the claimant or by an associated employer.
European law suggests that people will be in the same employment where there is a single, shared source with responsibility for agreeing and setting out the terms and conditions of employment and where that single source is in a position to put right any unlawful discrimination. In practice this has encompassed employment within the same organisation and within organisations that share common terms and conditions.
What can be compared?
Each individual term in the woman's contract of employment will be compared with those of the comparator(s).
Equal pay and part-time work
The rights of part-time workers to equal pay and other treatment that is not unfavourable
A pay practice that treats part-time workers less favourably than comparable full-time workers is likely to be indirectly discriminatory against women, as more women than men work part time.
Unless an employer can objectively justify the pay differential or practice, it will be unlawful. It is unlikely that an employer could justify a different basic hourly rate for full-time and part-time workers.
In most cases where a part-time worker is paid less (pro-rata) than a full-time worker, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (NI) 2000 would also apply. These ban the less favourable treatment of part-time workers (male or female) unless it can be objectively justified.
The exclusion of part-time workers from an occupational pension scheme has been held to be indirectly discriminatory and unlawful.
Equal pay and occupational pension schemes
How equal pay provisions apply to employee rights and occupational pension schemes
Occupational pension schemes are subject to the equal pay for equal work principle. Most occupational pension schemes are trust-based schemes where the scheme is legally separate from the employer and is administered by trustees, who are bound to implement equal treatment between women and men. The benefits will be in the form of pensions and lump sums.
Equal treatment rule
The equal treatment rule operates to ensure that comparable women and men are treated equally in both access to and benefits of an occupational pension scheme. If an occupational pension scheme, or a term of it, is less favourable to a woman than it is to a male comparator, then the term is modified so that it is not less favourable.
However, if the trustees or managers of the scheme can show that the difference in treatment is because of a genuine material factor which is not the difference in sex, then the sex equality rule will not apply to that difference.
Women on paid maternity, adoption or shared parental leave are covered by the equal treatment rule. The only time a woman on maternity, adoption or shared parental leave may be treated differently is when she is on a period of unpaid leave, when she is not entitled to accrue occupational pension benefits.
The terms on which benefits are provided to dependants of members, and associated discretions, are also covered by the equal treatment rule.
Where people are treated differently according to their marital or civil partnership status, a woman must select a male comparator who has the same status. So if a scheme provides a particular benefit only to members who are married or in civil partnerships, a woman who is not married or in a civil partnership cannot choose a man who is married or in a civil partnership as a comparator for a claim.
There is an exception to the equal treatment rule that allows a difference in occupational pension contributions for women and men because of prescribed actuarial factors. For example, an employer may have to pay higher contributions for female than male employees because of their longer life expectancy.
Defences to an equal pay claim
Valid reasons why an employer might lawfully be able to impose unequal pay and other terms of employment
The possible defences that you may raise in response to an equal pay claim are:
- the woman and her comparator are not doing equal work
- the chosen comparator is not allowed by law (for example he is not in the same employment)
- the difference in pay is due to a genuine material factor, which is not related to the sex of the jobholders
Genuine material factor defence
Once a claimant has shown that they are doing equal work with their comparator, the equality clause will take effect unless the employer can prove that the difference is genuinely due to a material factor which does not itself discriminate against the claimant because of their sex. Basically, the employer is able to give a genuine reason for the difference in pay between the claimant and their comparator that is not related to gender.
The employer must identify the factor(s) and prove:
- it is the real reason for the difference in pay
- it causes the difference in pay between the woman and her comparator
- it is material - that is, significant and relevant
- it does not involve direct or indirect sex discrimination
Personal differences between the workers concerned such as experience and qualifications may be material factors.
To be a valid defence, the material factor must not be directly discriminatory and if it is indirectly discriminatory, the difference in terms must be objectively justified. A material factor will be directly discriminatory where it is based on treating women and men differently because of their sex.
Indirect discrimination arises where a pay system, policy or arrangement has a disproportionate adverse impact on women compared with their male comparators, unless you can objectively justify it.
You can justify an indirectly discriminatory factor by showing that it is a 'proportionate means of achieving a legitimate aim'. Even where the aim is legitimate, the employer must be able to show that the means it adopts to achieve the aim is proportionate in the circumstances.
Job evaluation is a systematic and analytical procedure for comparing and determining the relative importance of different jobs. The process is common across the public sector where it enables employers to create fair pay systems and job hierarchies.
Employers considering the adoption of a job evaluation scheme should seek expert support around the development and implementation of the scheme to ensure that it does not unlawfully discriminate.
Where a non-discriminatory and analytical job evaluation scheme has determined that the work of the man and the woman are not equal, this can be used to defend an equal pay claim. Due to the risk of discrimination creeping into the job evaluation process, employers should seek expert support throughout the process.
Equal pay, pregnancy and maternity leave
The rights of employees who are pregnant or on maternity leave to receive pay rises and bonuses
Pregnant employees and those taking maternity leave enjoy a wide but complex range of legal rights which regulate their relationship with their employers, and in some cases their prospective employers.
These legal rights primarily exist:
- to protect their health and safety and that of their expectant or new-born children
- to preserve the contractual terms and conditions of employment that they would have otherwise enjoyed if they had not been pregnant
- to help them to attain a more satisfactory work/life balance following their children's births
- to protect them from unlawful discrimination
- to generally promote their equality of opportunity in employment
An equality clause is implied into a woman's contract to ensure that she receives certain pay increases and contractual bonus payments when she is on maternity leave. There is no need to show equal work with a comparator in this situation.
The equality clause applies to:
- the calculation of contractual maternity-related pay
- bonus payments during maternity leave
- pay increases following maternity leave
During maternity leave a woman's entitlement to receive her usual contractual remuneration (that is, salary or other benefits with a transferable cash value such as a car allowance or luncheon vouchers) stops, unless her contract provides for this.
However, she is entitled to any pay rise or contractual bonus payment (relating to the period of compulsory maternity leave) awarded during her maternity leave period, or that would have been awarded had she not been on maternity leave.
Any pay increase a woman receives or would have received had she not been on maternity leave must be taken into account in the calculation of her maternity-related pay.
Similarly, any pay or bonus related to time before the maternity leave starts, during compulsory maternity leave or after maternity leave ends, must be paid without delay. So if a woman becomes entitled to a contractual bonus for work she undertook before she went on maternity leave, she should receive it when it would have been paid had she not been on maternity leave.
On her return to work a woman should receive any pay increases which would have been paid to her had she not been on maternity leave.
Unfavourable treatment because of pregnancy or maternity in relation to non-contractual pay and benefits is covered by the employment discrimination provisions in the Sex Discrimination (NI) Order 1976.
Equal pay questionnaires
The rights of employees to make enquiries about pay arrangements to find out if they receive equal pay
Under the Equal Pay Act (NI) 1970, as amended, a person who believes they may have an equal pay claim is permitted to ask their employer for information that is or may be relevant to her claim. The questionnaire which must be used is prescribed in the legislation and can be obtained from the Equality Commission for Northern Ireland.
The questionnaire is intended to help individuals who believe they may not have received equal pay to obtain information from their employers to find out whether this is the case and, if so, why.
The information should help to establish key facts early on and make it easier to resolve any disputes in the workplace.
If the complainant decides to take a case to an industrial tribunal, the information should enable the complaint to be presented in the most effective way and the proceedings should be that much simpler because the matters in dispute have been identified in advance.
Benefits of carrying out an equal pay audit
How to audit your pay system to make sure it is transparent, equal and fair
Employers are responsible for providing equal pay for equal work and it is good practice to conduct pay audits to ensure that this is the case. Where a pay system lacks transparency, the employer could be required to prove that the pay system does not discriminate because of gender.
Some changes regarding equal pay and pay audits will take effect in the near future - see equal pay: upcoming legal changes.
Pay arrangements are often complicated and the features that can give rise to discrimination in pay are not always obvious.
The benefits to an organisation of carrying out an equal pay audit include:
- identifying, explaining and, where unjustifiable, eliminating pay inequalities
- having rational, fair and transparent pay arrangements
- demonstrating to employees and to potential employees a commitment to equality
- demonstrating the organisation's values to those it does business with
To ensure that your equal pay audit follows best practice, you can use the following resource developed by the Equality Commission for Northern Ireland:
Equal pay: upcoming legal changes
Changes that will come into force in relation to the Employment Act (NI) 2016
At present the Equal Pay Act (NI) does not impose any positive legal duty on employers that requires them to carry out equal pay audits to identify pay inequalities or to take remedial action.
The Equality Commission encourages all employers to be proactive in that way, but for the time being that is only a recommendation of good practice.
Employment Act (NI) 2016
For some employers, this may change as a result of section 19 of the Employment Act (NI) 2016. The latter has not yet come into force, but when it does it will impose a duty on the Northern Ireland Executive to make a new set of statutory regulations which, when passed, will impose new duties (described below) on some employers.
Section 19 of the Employment Act (NI) 2016 does not specify which employers will have to comply with the new duties.
The duties that the regulations will apply to the affected employers are to:
- publish information about the pay received by their workforces
- publish that information periodically - every 12 to 36 months, possibly
- develop action plans to eliminate any gender pay differences that are found
The regulations will specify further details about what information is to be collected and published.
A breach of duties imposed by the regulations will be a criminal offence and offenders will be liable to financial penalties of up to £5,000 per employee.