Closing the gap - how to demand fair pay

Cyril Adjei, an employment and discrimination law barrister, explains how to secure equal pay at work

Words: Cyril Adjei, in association with Judge Sykes Frixou

In recent months, the media has highlighted big differences in pay between female and male employees in a number of well-known companies and organisations. As the deadline for releasing this information creeps closer, more stories are likely to come to light. So what is gender pay gap reporting and what practical steps can you take to secure your right to equal pay if you are not being paid fairly?

What is the gender pay gap?

The gender pay gap is the difference between the average pay of working men and women, expressed as a percentage of men’s earnings. So if a company has a pay gap of 40%, this means that on average men earn 40% more than female employees. The gender pay gap is currently 18.4% in the UK. However, as with all statistics, the picture can look different depending on what set of statistics you look at. For example, the pay gap is less (14.1%) if you are just considering full-time employees. The difference is due to the fact that more women work part time and these women earn less than men who work part time. There are also significant variations in the pay gap for women according to their age and race.

What is gender pay gap reporting?

The Government has acted in response to concerns that the closing of the pay gap has stalled in the last few years and with some estimating that at current rates of progress it would take 62 years to eliminate it. It has introduced a legal requirement that private and public sector employers, who have more than 250 employees, publish a series of pay statistics that show what their female and male employees earn (including the average pay of male and female employees). Some employers have already published their reports but the majority are still do so. The deadline for publishing these reports is 4th April 2018, so we are likely to see a lot of reporting in the next few weeks. After this year, reports must be produced annually, so the gender pay gap is likely to remain in the spotlight, particularly because when a number of reports over a number of years become available, it will be possible to track what progress or lack of progress different companies have made towards eliminating the gap.

What can you do to secure equal pay for equal work?

Gender pay gap reporting on its own will not result in equal pay for women, particularly since it only applies to larger employers. However, what it may create is a more favourable environment for women to raise the issue and claim equal pay, even if they work for small employers who are not required to publish gender pay gap reports. Before looking at the practical steps you can take, it’s worth remember that you have the legal right to be paid the same as male employees if you are doing a job that is:

• the same or broadly similar; or
• a different job but it has been rated as equivalent to a man’s job by a job evaluation study (these studies are only usually undertaken by large employers); or
• neither of the above but is of equal value to a man’s job in terms of the demands on you in terms of such things as effort, skill and decision making.

If your employer cannot show that the difference in pay is for a reason that has nothing to do with your gender, then you are legally entitled to be paid the same as your male colleague and you may be able to claim the difference going back for a period of 6 years.

So, that is what the law says but what you can do in practical terms?

The first thing to do is to establish that your male counterpart is earning more than you. You may have come by this information by chance but if you do not have it, the simplest thing to do is to ask your male colleague (assuming you are on friendly terms with him). However, this may be difficult if your employer has rules that prohibit disclosures of what employees earn, particularly if your employer warns that if these rules are broken, an employee may face disciplinary action.

The law protects discussions about pay in the workplace which are aimed at establishing whether a woman has been paid less because of her gender by stating that a person who either seeks or provides such information for this purpose must not be subjected to detrimental treatment by their employer as a result. Detrimental treatment (such as disciplinary proceedings) would be illegal victimisation.

The law also states that rules that prohibit discussions for such purposes have no legal effect. Providing your reason for asking (and your colleague’s reason for telling you) is because of a concern about possible discrimination, it would be illegal to discipline either of you. If it is not possible or practical to ask your male colleague, consider asking HR. Employers are being encouraged to be transparent about pay, particularly with gender pay gap reporting being such a topical issue, so your employer may be more willing to disclose such matters.

This might be easier if the male counterpart you are asking about has left. The law allows you to compare yourself with a former male colleague, not only a current one.

Another factor that might help you is if there are other women doing your job who are in the same boat. It is easier to act together, not just because of strength in numbers but also because it is more difficult for your employer to pick on several employees who have raised the issue of equal pay. If there are a group of you who are concerned about equal pay and one of you is in a union, the union member could ask their union representative to ask for the information on their behalf, which you could then all use.

Once you have got information that there is a difference in pay, the next step is to ask for a pay increase. There is no hard and fast rule as to the best way of doing this. It’s usually a question of judging what method is likely to succeed without burning bridges (although, you may not be concerned about that if you are about to leave in any event). You could decide in the first instance to raise the matter informally with your line manager, perhaps during an appraisal or salary review period when there are already discussions about pay. If you have a good relationship with a member of senior management who is supportive of you – sometimes referred to as a “champion” – you may be able to ask for them to support your request.

If the informal route would be impractical or has not worked, you could raise it formally by raising a written grievance (see the recent article by Adrian Scotland about how to raise a grievance.) Your employer must respond formally to your concerns once they have been investigated.

Claims for equal pay can be simple but they can also be complex and it may be worth seeking some initial legal advice at the outset. This is particularly so if a group of you are affected, so that you can share the cost. The current focus on equal pay as a result of gender pay gap reporting may make this good a time to take action to secure your rights.

Cyril Adjei is a barrister at Old Square Chambers and is a specialist in employment and discrimination law. Please note that this article and the other legal resources published on our site from time to time can only ever amount to brief and generalised commentary on the issues concerned. They do not constitute legal advice and neither we, nor Cyril Adjei are able to accept liability for any losses arising from the same.