Equal pay under the Equality Act 2010

Although the provisions of the previous legislation are largely mirrored in the new legislation, there are a few significant changes to the way in which equal pay is dealt with, including in relation to comparators, pay secrecy and the publishing of information.

Under the old legislation, in order to show that there was a pay inequality it was necessary to find a comparator ? someone of the opposite sex doing a comparable job who was being paid more. Now it may be possible for a person to show that, even though there is no real comparator, they would have been paid more if they had been of a different sex, even though there is no one of a different sex doing that work, or comparable work, for the employer.

For further details as to the definition of a comparator see section 79.

In addition, the Equality Act also includes a new term which clarifies the position as to pay protection schemes and makes provisions which can make them lawful.

Sub-section 69(3) states that a long-term aim of the legislation is to reduce pay inequality and is always to be regarded as a legitimate aim for the purposes of justifying pay practices that indirectly discriminate against women. Thus short-term pay protection schemes which have been introduced to remove long-term inequalities in pay could be objectively justified, provided that their use is a proportionate way of achieving that aim.

The Equality Act also deals with pay secrecy and makes it unlawful for an employer to prevent or restrict employees from discussing their pay for the purposes of establishing whether differences exist. However, it is still possible for employers to require employees to keep pay rates confidential outside of the work place ? for example in connection with competitor organisations.

Finally in relation to pay, section 78 of the Equality Act gives power to make regulations which may require employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees. This will not apply to employers with fewer than 250 employees and may not come into force for two to three years.