What do the pay gap and equal pay mean in practice?

Then you need to consider the reasons for the pay difference as the employer may have a defence if it can show a Material Factor Defence, which is not itself either directly or indirectly discriminatory.

Employers have succeeded in defending equal pay claims where pay differences were shown to be due to: –

• Past experience/performance;
• Seniority/length of service;
• Differences in the work;
• Geographical reasons;
• Mistake;
• Employees being at different points on the employer’s pay scale;
• Market forces;
• Pay protection (following a TUPE transfer or a past JES); or
• Historical reasons

However, in some cases they will have had to justify that their pay practices were a proportionate means of achieving a legitimate aim (objective Justification)

If having done this you think you aren’t receiving equal pay, then you need to know what to do next.

The process for raising an equal pay dispute is generally as follows:

• Informal discussions – You should first discuss with your employer if you think you aren’t receiving equal pay;
• Raising a grievance – If discussions fail or the issue is serious, you can follow your employer’s formal complaints procedure, where you can find this should be laid out in your employment contract/employment particulars. Typically, they will be in any staff handbook or on your employer’s intranet or a copy can be obtained from Human Resources.
• Next you can try Early Conciliation via ACAS which is commenced by submitting an ACAS Early Conciliation Notification. ACAS will then liaise with you and your employer to try to assist the parties in settling their dispute over a period of up to 6 weeks.
• If that does not resolve things you could Bring an Equal Pay Claim in the Employment Tribunal, or sometimes in the Civil Courts.

Equal Pay Claims can relate to sex-based differences in contractual terms during the term of the contract/employment e.g.:-

• Basic pay.
• Automatic pay progression.
• Paid holiday entitlement.
• Sick pay.
• Hours of work.
• Performance-related pay and benefits, overtime rates and allowances.
• Non-discretionary bonuses.
• Contractual benefits in kind such as company cars.
• Pension benefits and access to pension schemes.

You might also have a Sex Discrimination Claim relating to any non-contractual matters arising before, during or after the employment, e.g.: –

• Recruitment arrangements.
• Offers of employment.
• The terms of a job offer.
• Promotion, transfer and training.
• Discretionary pay rises.
• Discretionary bonuses.
• Other benefits.
• Dismissal and other detriment.

It is a simplification, but generally, Equal Pay Claims need to be brought within 6 months of when the employment ends in the Employment Tribunal (But beware of promotions/new contracts etc. which can cause an earlier limitation date)

OR within 6 years in the Civil Courts – IF they will hear the claim and, noting that it is more likely in the Courts that the losing party may have to pay a portion of the winning party’s legal fees, whereas in the Employment Tribunal typically each party bears their own costs.

Sex Discrimination Claims need to be brought within 3 months of the act complained of (or sometimes from the end of a continuing act) and when employment-related, can only be brought in the Employment Tribunal.

Note: – the limitation clock will still be running whilst any internal grievance may still be unresolved.

It is necessary to get an ACAS Early Conciliation Certificate Number (2 digits longer than the Notification Number) before filing most Employment Tribunal Claims – it has to be accurately recorded on the Tribunal Claim Form (ET1).

Doing ACAS Early Conciliation will usually briefly pause the limitation clock (extending the above Tribunal time limits).  Usually, you will have at least a calendar month from the Certificate Date to file a Tribunal Claim.

These types of claims are quite complex and technical and pretty fact-specific, so the importance of taking early legal advice cannot be underestimated.

Please contact our team to discuss your needs and circumstances further.