Our employment law team has years of experience dealing with equal pay disputes. With knowledge spanning multiple industries, we work on behalf of employees in Scotland and help them achieve a fair and legal outcome.

From important definitions to who can make an equal pay claim, how to make one, and more, we’re here to assist employees facing this form of workplace discrimination in Scotland.

What is classed as equal pay?

As set out in the Equality Act 2010, men and women in the same employment performing equal work must receive equal pay, unless any difference in pay can be justified.
Equal pay applies to all contractual terms, not just basic pay. This includes:

• Basic salary and wages
• Pension contributions
• Holiday pay
• Overtime pay
• Redundancy pay
• Sick pay
• Workplace benefits
• Commissions
• Performance-related bonuses.

What are equal pay disputes?

An equal pay dispute arises when an employee isn’t receiving the same pay as another employee of the opposite sex, even though they perform equal work.

This is a legal issue governed by the Equality Act 2010, and the affected employee must compare their pay to a real-life colleague, referred to as a comparator.

A comparator can be someone employed by the same employer (or an associated employer) at the same establishment. A comparator can be employed at a different establishment belonging to the same employer (or an associated employer) at which ‘common terms’ are observed.

The kinds of equal pay claims

There are three types of equal pay claims an employee can raise in the case of a dispute. These are as follows:

1. Like work

This is when work carried out by one individual is the same or broadly similar to the work carried out by a comparator. While the roles can have minor differences, they are fundamentally comparable.

Whether work is broadly similar involves a general consideration of the work done by an employee and their comparator, and the knowledge and skill required to do it.

2. Work rated as equivalent

A person can claim equal pay if they can show that they are paid less than a comparator who is employed on work that has been ‘rated as equivalent’ to theirs under a job evaluation study.

A job evaluation study assesses the relative value of different jobs and is undertaken by an employer. The purpose is to evaluate the jobs to be done in terms of the demands made on a person by reference to factors such as effort, skill, and decision-making. Job evaluation studies tend to be carried out by larger employers who have the time and resources and who are more likely to face equal pay claims.

3. Work of equal value

If an employee’s job isn’t ‘like work” or rated as equivalent through a job evaluation study, they can still bring an equal pay claim by showing that their work is of the same worth as their comparators’ work.

What is work of equal value is difficult to define and refers to roles that may not involve the same work at all. Sometimes the only thing a claimant and the comparator have in common is the identity of their employer (or associated employer).

The question of whether jobs are of equal value is one of the most complex factual matters tackled by employment tribunals and often requires the input of an independent expert appointed from an approved panel.

Who can make an equal pay claim?

Equal pay can apply to the following employees:

• Full-time employees
• Part-time employees
• Apprentices
• Agency workers
• Temporary contracted workers.

All of the above can make an equal pay claim if they feel they’re being unfairly paid.

How to make an equal pay claim

1. Identify a comparator

To make an equal pay claim, you must be able to point to a real comparator. This is someone of the opposite sex who is paid more for the same job role as defined above. A comparator cannot be hypothetical.

2. Gather evidence

Collect details of all job duties, pay structures, and your job responsibilities before making an equal pay claim. Ensure your pay and/or other aspects of your contract such as your benefits, overtime, and commission rates are less than your comparator.

3. Raise the issue informally

Once your comparator is identified and evidence is gathered, you should raise the issue informally with your employer. You should do this in writing, explaining the situation and asking them for more information about your pay or contract terms and conditions, or about any job evaluation study in place.

4. Raise a grievance with your employer

If your employer doesn’t respond, you aren’t satisfied with their justification, or you feel that the issue is too serious to raise informally, you can raise a formal grievance.

5. Make an equal pay claim at an employment tribunal

If the above options fail, you may be able to file an equal pay claim with an employment tribunal. However, you’ll need to demonstrate that your pay and/or conditions are worse than the comparator’s.

In Scotland, if you leave the job you’re claiming for, you must file your equal pay claim within six months of leaving.

If an employee successfully establishes that they are employed doing equal work to their comparator, an employer can defend against the claim by arguing that the difference in pay is due to a material factor which is not discriminatory.

What amounts to a ‘material’ factor, can go beyond the personal qualities of an employee and their comparator (such as skill, experience or training). It can include outside matters such as administrative considerations affecting the operation of the employer’s business

How we can help

Equal pay claims are extremely complicated and legal advice is recommended. Our experience in this area enables us to help employees reach a fair and legal conclusion sometimes without the need to go to an employment tribunal hearing.

Get in touch with Allan McDougall Solicitors

If you need advice regarding equal pay disputes, whether you’re considering making a claim or have already started the process, don’t hesitate to contact the employment law experts at Allan McDougall Solicitors.

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