The Equal Pay Act 1970 and Equal Pay Act 2010 implement the principle that men and women should receive equal pay for equal work. The law provides that anyone employed under a contract personally to do work is entitled to enjoy contractual terms that are as favourable as those of a male comparator in the "same employment" if they are employed on equal work, that is, like work, work rated as equivalent or work of equal value.
The law implies an "equality clause" into the woman's contract of employment, which operates so as to replace her less favourable term(s) with the equivalent more favourable term(s) of the man's contract. Under the Equal Pay Act 2010 this is referred to as the "sex equality clause". Each term of the contract must be considered separately. However, the sex equality clause does not operate if the employer shows that the difference in contractual terms is due to a material factor which is neither directly nor indirectly discriminatory. A factor that, on the face of it, is gender-neutral but which, in practice, has a disproportionate adverse impact on women will need to be objectively justified by the employer.
There are also specific provisions aimed at protecting women's pay during pregnancy and maternity leave. A woman who has taken maternity leave must not lose the benefit of any pay rise that she would otherwise have had, in calculating either her maternity pay or her pay on return to work. Furthermore, she must not lose out on any bonus that she would otherwise have received during her maternity leave, to the extent that it relates to the period before her maternity leave, any period of compulsory maternity leave, or the period after she returns to work. Again, these provisions operate by way of an implied equality clause to amend the woman's contract, but there is no need in such cases for a male comparator to be identified. Under the Equal Pay Act 2010 this is now referred to as the "maternity equality clause".
The Equal Pay Act 1970 was introduced to ensure that women were not paid less than their male counterparts because of their sex. It therefore refers to the claimant in an equal pay claim as a woman, and her comparator as a man. However, the principles apply equally in reverse and a man can bring an equal pay claim based on a comparison with a female colleague. The Equal Pay Act 2010 uses gender neutral language, referring to the claimant as "A" and the comparator of the opposite sex is "B"
To bring a claim under the Equal Pay Act 1970 a woman must (or have been) "employed", which is defined as working under:
- A contract of service;
- A contract of apprenticeship; or
- A contract personally to do work.
Equal pay law does not just cover pay (although, in practice, nearly all claims relate to pay). A claim may be made under either Act in respect of any contractual term, whether or not relating to pay.
It is important for a potential claimant or their adviser to establish at an early stage whether to bring a claim under equal law or under discrimination law.