What is equal pay?
Equal pay was originally introduced under the Equal Pay Act 1970 and was subsequently replaced in the Equality Act 2010 ("the Equality Act"). Equal pay requires no less favourable terms and conditions of employment for men and women in the same employment when employed on like work, work of equal value or work rated as equivalent under a job evaluation scheme. The Equality Act implies a "sex equality clause" into a woman's contract of employment so that less favourable terms are replaced with the equivalent more favourable terms of a man's contract. Employers will not be liable if they can show that the difference in contractual terms is due to a material factor which is neither directly nor indirectly sex discriminatory.
Successful claimants can claim arrears of pay going back up to six years (in England and Wales), and five years (in Scotland).
What has been proposed by the Labour party?
According to an article in the Guardian, the Labour party has proposed extending the equal pay protection afforded on the grounds of sex to ethnic minority and disabled workers.
Does current discrimination legislation not already provide sufficient protection?
The protected characteristics of race and disability are already protected under the Equality Act. If an individual is paid less because of their race or because of a disability, they can bring a direct discrimination claim under the Equality Act. Depending on the circumstances claimants may also be able to bring an indirect sex discrimination claim. There are complex legal arguments as to whether discrimination legislation or equal pay legislation is more advantageous, there are certainly pros and cons to both routes. For example, time limits to bring a discrimination claim are three months from the date of discrimination (subject to any extension of time) and in equal pay claims six months from the date of termination of employment. What is undoubtedly clear is that equal pay claims are notoriously difficult to bring and to defend.
Comment
We are awaiting the full detail from the Labour party as to what the proposal actually looks like. At first glance from current reports it is questionable whether the new law would extend employment rights significantly. We have grappled with decades of equal pay case law considering each element of the legislation. It is likely that claims would become more complex and employers and employees alike would face difficult legal battles over the new legislation and how it works in practice. We will keep you updated.
