Employment & Pensions Blog: Women's football and a reminder of equal pay principles

With the Women’s World Cup 2023 coming to an end last week, there has been a number of headlines about unequal pay in football. Whilst there are likely to be many factors contributing to football inequality that aren’t relevant for many jobs (such as differing income from sponsorship, broadcasting and match attendance), we thought we would take this opportunity to publish a reminder on equal pay and how it could affect your organisation.

Equal Pay

Firstly, it is important to remember equal pay is not the same as a gender pay gap. The gender pay gap is the difference between the average earnings of men and women, whilst equal pay is the term used to reflect that men and women in the same employment performing like work, or work of an equal value, must receive equal pay unless there is a reason for the difference in pay that is not gender.

By law, men and women must get equal pay for doing 'equal work'. This is either:

• 'like work' –where the work is of a broadly similar nature and any differences are not of practical importance. Although the job description may be relevant, the focus needs to be on what work is carried out in practice.
• 'work rated as equivalent' – work rated as equivalent, usually using a fair job evaluation. This could be because the level of skill, responsibility and effort needed to do the work are equivalent.
  
• 'work of equal value' – work that is not similar but is of equal value. Equal value will be assessed by reference to factors such as effort, skill, decision making, responsibility or demands of the working conditions are of equal value. An expert is often appointed to assist in the carrying out of this determination.

To bring a claim, there is a need for an actual comparator of the opposite gender, and it can be an existing or a previous employee. The comparator must be (or have been) working “in the same employment” which broadly means employed by the same employer or by associated employers either at the same establishment or different establishments where common terms of employment apply to both.

As set out above, male and female employees can be paid differently for doing the same work in circumstances where there is a reason that is unrelated to gender. This is known as a material factor defence and examples of this include seniority and length of service, pay protection arrangements or geographical reasons to name a few and in order to successfully defend a claim, any reasons would need to be sufficiently evidenced. In circumstances where an employer has a material factor explaining the difference in pay, there is a potential further issue if the factor is indirectly discriminatory. In such case an employer would need to objectively justify the pay difference and show that this is proportionate to any legitimate aim it is seeking to achieve.

Comment

Equal pay can be complex, and employers are advised to conduct periodic audits to identify any equal pay issues and consider whether these are justified. If differences cannot be explained by a material factor that is unrelated to pay, they should be rectified. Taking this proactive approach to pay should assist in avoiding equal pay claims by employees which can be time consuming and expensive for employers to defend, and could result in backpay being awarded for up to 6 years if successful.

If you need assistance in determining whether your organisation is at risk of an equal pay claim, or advice on how to defend against an equal pay claim, then please contact a member of the Employment Team.