This document provides an overview of equal pay law in the UK. It discusses the principle of equal pay, defining equal work and introducing the concept of a sex equality clause. Exceptions like the material factor defense are explained, along with examples. Specific provisions regarding maternity and equal pay are outlined. The document contrasts equal pay claims with sex discrimination claims, providing factors to consider and examples of each. Key concepts like direct and indirect discrimination are defined. Overall, the document serves as a high-level primer on equal pay law and how it relates to sex discrimination claims in the UK.

1. EQUAL PAY & DISCRIMINATION
MAY 2014

2. EQUAL PAY AND DISCRIMINATION
Bruce Frew
St Philips Chambers
My name is Bruce Frew and I am an Employment Barrister at St. Philips Chambers. We have
Chambers in Leeds, London and Birmingham. I am part of a team of twenty six Barristers who
specialise in employment law and by virtue of my area of specialisation I come across equal pay
claims on a regular basis. The area of equal pay is complicated and wide. This Webinar is limited
to thirty minutes of an explanation of the way in which discrimination acts as a factor in equal pay
claims.
SUMMARY OF EQUAL PAY LAW
The Principle of Equal Pay
The Equality Act 2010 (before 1 October 2010 the Equal Pay Act 1970) implements the principle
that men and women should receive equal pay for equal work, as set out in Article 157 of the
Treaty on the Functioning of the European Union (TFEU), into the law of Great Britain.
Equal Work
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).
Sex Equality Clause
The Law achieves this by implying a “sex equality clause” into a woman’s contract of employment,
which operates so as to place her less favourable term(s) with the equivalent of more favourable
term(s) of a man’s contract. Under the Equal Pay Act 1970 this was referred to simply as the
“equality clause”. Each term of the contract must be considered separately for comparison
purposes.
Material Factor Defence
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 sex discriminatory. A factor
that is ostensibly gender neutral which, in practice, has a disproportionate adverse impact on
women will need to be objectively justified by the employer.

3. Maternity and Equal Pay
There are 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 does 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 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 Equality Act 2010 this is referred to as the
“maternity equality clause”.
Claims
Equal pay claims are usually brought in an Employment Tribunal, which can make a declaration of
the claimant’s rights and require payment of any arrears of pay or damages for breach of a non-
pay term. However, in some circumstances a claim can be brought in the Civil Courts.
Equal Pay or Sex Discrimination Claim
On the initial analysis of a problem which is brought to me one of the first questions to consider is
whether or not an equal pay claim should be brought as opposed to a sex discrimination claim.
It is important for a potential claimant to establish at an early stage whether to bring a claim under
equal pay law or under discrimination law. The following factors should be considered:
(i) Treatment that consists of an offer of employment on terms which, if accepted, would
contravene an equality clause is actionable under discrimination law not equal pay law.
(ii) Contractual terms which, in the absence of a material factor defence or other exception,
would be modified or inserted by an equality clause are not actionable under the sex
discrimination provisions.
(iii) Pre-October 2010, treatment that concerned “benefits consisting of the payment of money
when the provision of those benefits is regulated by the woman’s contract of employment”
was not actionable under the Sex Discrimination Act 1975.
(iv) Post-October 2010, treatment that concerns “a term of a person’s work that relates to pay
but in relation to which an equality clause has no effect” is not actionable under the Equality
Act 2010 unless it amounts to direct discrimination under Section 13. The purpose of this
provision is to permit hypothetical comparators in direct discrimination claims relating to
pay.

4. Guidance has been provided to us by the Employment Appeal Tribunal in the case of Peake v
Automotive Products Ltd. [1977] ICR 480 as follows.
Examples of Matters covered by Equal Pay Law
• Basic pay.
• Automatic pay progression.
• Paid holiday entitlement.
• Sick pay.
• Hours of work.
• Performance-related pay and benefits, overtime rates and allowances.
• Non-discretionary bonuses.
• Contractual benefits in kind such as company cars.
• Pension benefits and access to pension schemes.
Examples of Matters covered by Sex Discrimination law
• The terms of a job offer.
• Promotions.
• Discretionary pay rises.
• Discretionary bonuses.
The Employment Appeal Tribunal’s guidance in Peake identifies that Employment Tribunals
should start by considering whether the claim is an equal pay claim. The guidance in Peake,
which referred to the Equal Pay Act 1970 and the Sex Discrimination Act 1975 as opposed to the
Equality Act 2010, was as follows.
Equal Pay Claims
The case had to be brought under the Equal Pay Act 1970 where the less favourable treatment
related to
• the payment of money regulated by a contract of employment;
• Some other matter regulated by the contract of employment, where the comparator was an
employee of the opposite sex who was doing like work, work rated as equivalent or work of
equal value.
Sex Discrimination Claims – a claim could only be brought under the Sex Discrimination Act
1975 if the less favourable treatment related to
• matters which were not included in the contract (either expressly or by virtue of the Equal
Pay Act 1970);

5. • matters in a contract, other than the payment of money, where the comparison was not
with workers doing like work, work rated as equivalent or work of equal value;
• matters, other than the payment of money, which were regulated by a contract of
employment but where the comparison was with a hypothetical comparator.
It is noteworthy that since the Equality Act 2010 a fourth bullet point should be added under Sex
Discrimination Claims as follows:
• contractual terms relating to pay where no equality clause applies and the comparison is
with a hypothetical comparator.
The Material Factor Defence
An employer can pay a man more than a woman for doing equal work, but only if it can prove that
the variation in pay is due to a material factor which is not directly or indirectly discriminatory. The
Equality Act 2010 refers to this defence as the material factor defence.
Of course, every defence will depend upon the facts of the case. Factors that have succeeded in
some claims have failed in others. Whatever the defence raised, the burden is on the employer to
prove that the material factor relied on is the real reason for the difference in pay, that it is
significant and that it is not related to sex.
Examples of material factors that might establish a defence depending on the circumstances are
as follows:-
• past performance
• seniority/length of service
• differences in the work (where they do not already render the work not “equal work”)
• different hours of work
• geographical reasons
• mistake
• different grades or points on a pay scale
• different collectively agreed pay scales for the jobs
• market forces and skills shortages
• pay protection arrangements following a job regarding exercise
• historical reasons
Establishing that the reason is material is not the end of the process. Often the hardest part of the
material factor defence is establishing that the factor is non- discriminatory. This is often referred
to in the case law as the question of whether the factor is “tainted by sex”.

6. In this respect the Equality Act 2010 and the Equal Pay Act 1970 have significant differences in
their wording. The Equal Pay Act 1970 merely required that the factor was “not the difference of
sex”. This was interpreted by case law as including in some circumstances an obligation to
objectively justify the material factors. The Equality Act 2010 attempts to codify the broad
principles of that case law and provides that:
• the factor must not involve treating the claimant less favourably because of her sex than
the comparator
• if the factor results in the claimant and other women doing work equal to hers being put at
a particular disadvantage when compared with men doing work equal to theirs, the factor
must be objectively justified as a “proportionate means of achieving a legitimate aim”.
The principles with regard to sex taint are summarised below.
Is the Factor tainted by Sex?
The burden of showing that the factor is not sex tainted is on the employer.
The Employment Appeal Tribunal has identified the following scenarios in which a factor may be
sex tainted.
• It is directly discriminatory – in other words, where gender played a role in the mind of the
decision maker.
• It is indirectly discriminatory – in other words the difference in pay results from the
employer applying a provision, criterion or practice that puts women at a particular
disadvantage compared to men.
• There are statistics which show “an appreciable difference in pay between two jobs of
equal value, one of which is carried out almost exclusively by women and the other
predominantly by men.”
If there is on the face of it indirect discrimination arising from a provision, criterion or practice, the
employer will lose unless it shows that the provision, criterion or practice is objectively justified.
Examples of Sex Taint
A causative link between the claimant’s sex and the difference in pay can be established in a
variety of ways, for example, as a result of job segregation or pay structures which disadvantage
women more than men because they generally work shorter hours or have shorter service.
Often, grading systems and pay scales, market forces, pay protection schemes and other
historical factors are themselves affected by the ingrained systematic inequalities that equal pay
law was intended to address. For example, a pay protection scheme put in place to smooth the

7. transition into a fairer pay structure may be held to be tainted by sex if its effect is to perpetuate,
albeit temporarily, existing sex inequality.
SUMMARY AND CONCLUSION
We are enabled to consider a small part of a large and complicated area of law. In doing so I
have identified the factors to take into consideration when considering a set of facts and identifying
whether a claim should be brought under equal pay legislation or discrimination legislation.
A primary factor to consider by any employer is the genuine material factor defence. I have
outlined how this can be established only in summary but with the important element of a
consideration as to whether there is a sex taint.
In the time that we have it is impossible to provide anything other than a brief summary which can
be used to springboard further detailed advice or indeed to refresh those of us amongst us who
have a certain knowledge of the areas of law.
Of course, I hope that this time has been of assistance and invite any of those who seek further
clarification of the areas of law or indeed any area of employment law to contact me outside of the
time constraints of this Webinar.
Good afternoon to you all.
© BRUCE FREW
MAY 2014
ST PHILIPS CHAMBERS
55 TEMPLE ROW
BIRMINGHAM B2 5LS
bfrew@st-philips.com

8. Bruce Frew
Call: 2005
Telephone the practice team: 0121 246 7015
Employment
Bruce has an extensive practise specialising in Employment Law. He is widely experienced
in all areas of employment law: Unfair and Wrongful Dismissal; TUPE; Breach of Contract;
Restrictive Covenants; Working Time Regulations; Victimisation and Redundancy (individual
and collective) as well as all types of discrimination, including: sex, race, pregnancy, sexual
orientation, religion or belief, age, and disability.
Bruce represents both Claimants and Respondents in equal measure and is instructed from
a variety of sources, including individuals, small undertakings, regional and nationwide
companies, trade unions and the public sector extending to Universities, Local Authorities,
and solicitors practices. He regularly appears in the Employment Tribunal, on matters
ranging from application hearings to multi day, multi-party, complex cases, and he has
appeared in the Employment Appeal Tribunal on numerous matters also. In recent years a
number of his EAT cases have been reported.
In addition to representation in tribunals Bruce undertakes both advisory and drafting work.
He has drafted and advised on a number of settlements, service agreements and
commercial agency agreements and has been involved in the negotiation on a direct access
basis of terms of settlement on the termination of employment. Bruce has also represented
parties in employment mediations, both judicial and non-judicial.

9. Bruce is accredited to take instructions on a public access basis and is happy to do so where
cases are suitable for instruction on this basis. Recently he has seen significant growth in his
direct access instructions.