Equal Pay
The Equal pay and the Equality clause:
The equal pay provisions render it unlawful for an employer to discriminate between men and women in
relation to the terms of their contracts.
The legislation thus implies a ‘sex equality clause’ into contract…
S66(2):
S66(1) If the terms of A's work do not (by whatever means) include a sex equality clause, they are to be treated
as including one.
S66(2) A sex equality clause is a provision that has the following effect—
(a) if a term of A's is less favourable to A than a corresponding term of B's is to B, A's term is modified
so as not to be less favourable;
(b) if A does not have a term which corresponds to a term of B's that benefits B, A's terms are modified
so as to include such a term.
S66(3 )Subsection (2)(a) applies to a term of A's relating to membership of or rights under an occupational
pension scheme only in so far as a sex equality rule would have effect in relation to the term.
S64(1): states that s66-70 apply where:
a. A person (A) is employed on work that is equal to the work that a comparator of the opposite sex (B)
does
Then s66 will imply an equality clause into the contract.
It is important to consider whether the claim is one that should be brought under the equal pay provisions, or
under the discrimination provisions (?)
Equal Pay provisions Discrimination provisions
If the less favourable treatment relates to the payment If the employee is treated less favourably than an
of money which is regulated by a contract of employee of the other sex who is doing the same or
employment broadly the same work, or whose work has been given an
equal value – and the less favourable treatment relates to
If the employee is treated less favourably than an some matter which is not included in the contract.
employee of the other sex who is doing the same/
broadly the same work, or whose work has been given If the less favourable treatment relates to a matter (other
an equal value, and the less favourable treatment than the payment of money) in a contract, and the
relates to some matter which is regulated by the comparison is with workers who are not doing the same or
contract of employment. broadly similar work, or work which has been given an
equal value.
If the complaint relates to a matter which is regulated by
an employee’s contract of employment but is based on an
allegation that an employee of the other sex would be
treated more favourably in similar circumstances
(hypothetical comparator).
A claimant in an equal pay case must be able to point to an actual comparator.
Must bring a claim to ET within 6 months of end of the employment contract
Defences to an equal pay claim:
Employer shows that the difference in pay is due to a material factor which is relevant and significant, and
which does not directly/indirectly discriminate against the worker because of their sex – s69.
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The Equal pay and the Equality clause:
The equal pay provisions render it unlawful for an employer to discriminate between men and women in
relation to the terms of their contracts.
The legislation thus implies a ‘sex equality clause’ into contract…
S66(2):
S66(1) If the terms of A's work do not (by whatever means) include a sex equality clause, they are to be treated
as including one.
S66(2) A sex equality clause is a provision that has the following effect—
(a) if a term of A's is less favourable to A than a corresponding term of B's is to B, A's term is modified
so as not to be less favourable;
(b) if A does not have a term which corresponds to a term of B's that benefits B, A's terms are modified
so as to include such a term.
S66(3 )Subsection (2)(a) applies to a term of A's relating to membership of or rights under an occupational
pension scheme only in so far as a sex equality rule would have effect in relation to the term.
S64(1): states that s66-70 apply where:
a. A person (A) is employed on work that is equal to the work that a comparator of the opposite sex (B)
does
Then s66 will imply an equality clause into the contract.
It is important to consider whether the claim is one that should be brought under the equal pay provisions, or
under the discrimination provisions (?)
Equal Pay provisions Discrimination provisions
If the less favourable treatment relates to the payment If the employee is treated less favourably than an
of money which is regulated by a contract of employee of the other sex who is doing the same or
employment broadly the same work, or whose work has been given an
equal value – and the less favourable treatment relates to
If the employee is treated less favourably than an some matter which is not included in the contract.
employee of the other sex who is doing the same/
broadly the same work, or whose work has been given If the less favourable treatment relates to a matter (other
an equal value, and the less favourable treatment than the payment of money) in a contract, and the
relates to some matter which is regulated by the comparison is with workers who are not doing the same or
contract of employment. broadly similar work, or work which has been given an
equal value.
If the complaint relates to a matter which is regulated by
an employee’s contract of employment but is based on an
allegation that an employee of the other sex would be
treated more favourably in similar circumstances
(hypothetical comparator).
A claimant in an equal pay case must be able to point to an actual comparator.
Must bring a claim to ET within 6 months of end of the employment contract
Defences to an equal pay claim:
Employer shows that the difference in pay is due to a material factor which is relevant and significant, and
which does not directly/indirectly discriminate against the worker because of their sex – s69.
1
