Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Equality, diversity and inclusionEqual paySex discrimination

Legal opinion: Tackle equal pay before floodgates open

by Emma Bartlett 13 Mar 2008
by Emma Bartlett 13 Mar 2008

Equal pay is a key issue for 2008, and is no longer restricted to the public sector. The recent rise in claims has been so significant, that the chairman of the Equality Human Rights Commission and Unison are calling for radical change in the law to inject some pace into equality legislation. Despite its introduction 30 years ago, there are still few signs of pay equality.

Claims rose from 6,607 in 2004-05 to 44,013 in 2006-07, making equal pay the second most popular claim after unfair dismissal. An even greater increase of 150,000 claims is predicted for 2007-08, and unfair dismissal claims will be dwarfed now employees know how to bring equal pay claims.

In the City, such claims occur as a result of low or zero bonus awards, which may have been preceded by bullying and harassment as business pressures have tightened the visible lack of senior female bankers/executives and an unwillingness to leave the stereotypical, male, working environment behind (eg, the long-hours culture). And whether company or sector driven, one claim is normally the tip of the iceberg.

Causes

Causes of unequal pay that might support a genuine material factor defence – such as performance-related pay or historical reasons – will be limited by time. If tainted by sex discrimination, they will not succeed, and employers will be forced to rely on a second defence of objective justification.

Objective justification is a much harder defence. Where a material factor defence need not be fair, objective justification must be both “appropriate and necessary”. The opportunity to rely on a genuine defence will disappear if there is a suggestion that the reason is tainted by sex.

There is tension in current case law as to when objective justification is required. An anticipated decision from the Court of Appeal in two consolidated appeals, Surtees and Bainbridge, will hopefully clarify the situation. Employers will not want an outcome that supports staff relying on statistics to show indirect discrimination generally simply a decision that if the pay disparity is for a non gender-related reason, objective justification is not required. The decision is expected imminently. One adverse finding, however, could open the floodgates.

Costly claims

Equal pay claims can be expensive to defend. Legal fees are higher than average, as the claims are complex, and are generally unrecoverable. A pre-action questionnaire procedure may also be served. If the comparator is not an employee of opposite gender doing the ‘same job’, an analysis of the “appropriate comparator” can be difficult to find. Claimants can be awarded up to six years’ difference in unequal pay. The commercial consequences speak for themselves.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

Recommendations

  • Avoid perpetuating the pay gap by training managers who take decisions regarding recruitment, pay or promotion on diversity issues.
  • Respond quickly to resolve queries or grievances regarding pay to avoid inferences of sex discrimination as well as breaching the statutory dispute resolution procedures.
  • Consider equal pay audits.
  • Reward systems should ensure that appraisals are fair out so that performance is rated on an objective basis.
  • Adopting a positive attitude to flexible working will help lower resentment and negative perceptions of ‘part-timers’, encouraging flexible working in most levels and both genders without detriment to pay.

It used to be the case that you could be an employment lawyer without ‘doing’ equal pay. But that’s no longer the case for lawyers, and probably for HR, too.




Emma Bartlett

previous post
Legal Q&A: no straight answer to ‘gay banter’ harassment claim
next post
Case of the week: what is the definition of a pregnant worker?

You may also like

Fewer workers would comply with a return-to-office mandate

21 May 2025

Redefining leadership: From competence to inclusion

21 May 2025

Consultation launched after Supreme Court ‘sex’ ruling

20 May 2025

RCN warns Darlington NHS trust over single-sex spaces

16 May 2025

EHRC bows to pressure and extends gender consultation

15 May 2025

Culture, ‘micro-incivilities’ and invisible talent

14 May 2025

Why fighting the DEI backlash is about PR...

9 May 2025

So what does the election of a new...

9 May 2025

Rethinking talent: Who was never considered in the...

7 May 2025

Reform UK councils’ staff face WFH ban

6 May 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+