Workplace Report May 2021

Law - Equal pay

Equal pay - the law

Basic legal rules

The equality of terms provisions of the Equality Act 2010 (EA 10) provide that a person employed on work that is equal to that of a comparator of the opposite sex is entitled to terms that are no less favourable.

Work is considered equal if it is “like work”, “work rated as equivalent” or “work of equal value” (section 65(1) EA 10).

The comparator must work either in the “same establishment” as the person bringing the claim, or at another establishment if both are employed under “common terms” (section 79 EA 10).

A difference in pay between sexes is lawful if the employer can show that the difference is because of a material factor that is not the person’s sex and is a proportionate means of achieving a legitimate aim.

Recent cases

• Retail workers for Asda are employed under “common terms” with its distribution workers and could rely on them as comparators in their equal pay claims. Where potential comparators are employed at a different establishment, all that a tribunal has to ask is whether they would continue to be employed on the same or substantially the same terms if they were to be employed at the claimant’s establishment (case 4).

• A request for disclosure of documents and information was not a “fishing expedition” when it was made to narrow and particularise existing claims (case 5).