How Would I Know If I Am Paid Equally?

What to expect from your employer

Finding a suitable comparator

Are you paid the same?

Review any 'reasons' for unequal pay

Before starting, it is worthwhile considering what to expect from your employer. You may hope that they will do the right thing by you if you point out they are doing something wrong and against the law, but you may be surprised - not just mildly surprised, but in some cases outrageously shocked.

Tactics used can include denial, delaying, ignoring, answering a different question to the one you asked and even active obstruction. There are many more but that should give you a flavour of what to expect. Yes, cynicism rules - but this is based on the writers own experience.

Some companies may be worse than others and you may not truly know your company until you start this process - if you think you work for a 'good' employer, ask yourself whether this view is from before raising issues such as bullying and equal pay. And let's face it, the fact that you are suffering from bullying AND you believe you are not on equal pay, how good are they really? Once you become a 'problem' for standing up for yourself and your rights, you may see a very different side to them.

Many people suffer from an expectation gap between what they think their employer will do and what they actually do - because you may be a reasonable person you may expect the company to have the same values, this idea itself is not always reasonable! The bigger the difference between the two can correlate to the extent your emotional well-being is affected. Our best advice is to expect the worse - and then at least you will not be disappointed. Do not underestimate the impact of their tactics on you emotionally. Unless you prepare yourself for the worst, you may find that you react quite negatively to each 'stunt' they pull. This is difficult anyway but even harder if you are also being bullied and suffering from a psychiatric injury, such as depression.

To further protect your emotional well-being, you may also wish to use the same approach with your union, if you are involving them.

Finding a suitable comparator

The first thing to do is to identify a suitable comparator of the opposite sex so you can test the 'equal' in equal pay - it is not the responsibility of your employer or a tribunal to decide who this would be. A suitable comparator would be doing the same or similar job, 'like work', or be doing work of 'equal value' and you may choose more than one comparator.

Equal value would cover the demands of the job, even if the jobs were vastly different. The demands of the job could mean the skills, knowledge, mental and physical effort and responsibilities required. In claims of equal value, it is best to choose several comparators in different occupations if this is possible, to ensure that at least one is suitable.

Traditionally, equal pay affects more women than men, although with the bullying link it may affect either sex but the comparator must always be of the opposite sex to you. If you know of someone of the same sex that is paid more than you, there is nothing you can do. (A way around this: find a second potential comparator of the opposite sex who is paid less than the comparator of the same sex, persuade them to claim using your main comparator and if they are successful, you then have a comparator of the opposite sex! Hey, it's worth a try!)

Comparators do not have to consent to being nominated a as comparator, and it would be for your employer to approach and communicate with them, if this is necessary.

More on comparators The scope of comparison

Are you paid the same?

Finding out how much the comparator earns may be difficult as employees do not always talk to others around them about how much they earn. The EOC shows that of the Equal Pay Reviews carried out by companies, 21% identified a pay gap and also a fifth of employers do not ‘allow’ employees to share pay information – is it a coincidence that those figures are so similar? Could the companies be broadly the same ones in each case? And why would an employee not be ‘allowed’ to talk about their pay, when it is not illegal to discuss your own private business with whoever you choose to? It may just be convenient for any employer who knows there is a disparity in pay. Any company attempting to restrict transparency in this way should be a big warning sign to employees. Always ask yourself why this may be.

If you do not know by talking to others and you wish to keep things reasonably informal at first, you could write a letter to your employer (don't do this verbally as it could be denied at a later stage), noting that you believe you are not paid equally and would like them to investigate. Make sure that you quote in your letter that the Equal Pay Act 1970 requires men and women to be paid the same. This will ensure that your employer cannot claim ignorance of a specific equal pay claim later on, possibly explaining it away to a tribunal as a disgruntled employee complaining about not earning enough.

Under the new Employment Act 2002, it is compulsory to exhaust all methods, so your companies formal grievance procedure should be used to make your complaint. Again, ensure that you mention the Equal Pay Act 1970 and its requirements. Any grievance decision may come back with a yes or no, you are/are not paid equally. That is not the information your require so it is always best to pre-empt this side-stepping of the issue by making it clear in your grievance that you would like not only the pay rates disclosed, but also a full explanation for any difference. This should give you enough information to either be satisfied or have enough detail to take it to a tribunal.

As a part of the bullying, you may have already applied for a Data Subject Access Request under the Data Protection Act. This may well give you plenty of information that will help your case, although it is usual that all non-consenting third part data is removed. There may still be enough to give you the evidence you need. You may also find some background information on the tactics used by the company to fend you off.

Lastly, the Equal Pay Questionnaire (EPQ) is the most likely to provide you with all the information you need and follows the format of the Sex Discrimination SD74 Questionnaire. It was introduced in April 2003 and means that an employee can ask a range of questions about themselves and a comparators pay and related benefits, without having to make a tribunal claim. The questionnaire covers a statement on why the employee believes they are not on equal pay, who they believe their comparators are, allows questions to ascertain if they are receiving less pay to the comparators and the reason why, along with asking if the company agrees that they are doing like work or work of equal value to the nominated comparator.

The time limit for the company to respond to the EPQ is 8 weeks and although it is voluntary, a tribunal can draw inferences if they do not reply within that time without a good reason. The company may not give some information if it is deemed to be confidential, either to the company or to a specific individual, as they also have to adhere to the Data Protection Act and may give this as their reason for withholding information. If this is their response and the claim goes to a tribunal, the tribunal can order this information to be disclosed, if it is in the interest of justice. The recent Employment Appeal Tribunal ruling in the Barton case ruled that pay and bonus secrecy, lack of transparency and the serious failure to deal with the questionnaire process should not be condoned.

At any stage, you may wish to get ACAS involved as an independent conciliator or for advice. ACAS are independent and do not take sides, so do not expect them to - even if you are convinced you are right. Having ACAS talk to your employer on your behalf may make a difference in the amount of information they give you or may even encourage them to settle the matter without it going to a tribunal - and by making all attempts to settle the matter amicably is always seen as reasonable if the matter were to go to Tribunal. Do remember that it is unlikely that you will be able to recover any costs incurred in taking this claim to a tribunal, so it is in your best interests to settle the matter if it is possible.

There is more information on the EPQ on the next page

More About the EPQ EPQ Download (Word format) ACAS

Review any 'reasons' for unequal pay

This section is kept separate from possible defences, which we will deal with in the tribunal section, as it is important to stop to consider what you know up to now, whether you are satisfied with it and whether you have a strong enough case to take the claim further. Consider each one carefully:

• Firstly, have you found out what you needed to know?
• Do you know what the comparators earn, including all related pay benefits?
• Do you still consider that they are a true comparator after the (hopefully) detailed response from the EPQ?
• If you are happy that one or more of the comparators truly are a comparator and that you do not earn as much as they do, what possible reasons could there be?
• Did your company give you any indication as to why they pay them more (if they acknowledged this)?
• When you consider whether someone is a comparator or not, go by your own knowledge, experience and instincts - many an employer will deny they are but this may be another tactic to put you off taking the matter to a tribunal. If they insist that the comparator does a different job and have explained why they think this, are you convinced?
• If they have given other reasons such as better performance, consider whether performance is a criteria for basic salary or is this dealt with in any profit schemes and do you agree there is a difference in performance? Quite often you may find that the reasons given may look good as a defence and may appear aggressive, and when you look further into them, they just do not agree to how how your pay is calculated or from what you know of your job and that of your comparator. If their reasons go against what you know of the company policies on pay, ensure that you get a copy of each one to use as evidence.
• And lastly, after considering all these questions and you still feel that there is an issue, what can you prove?

From any answers given in an EPQ, you should roughly be able to tell what the defence would be if you went to a tribunal, although you may not have served one or may not have had a response back yet. If this is the case, consider what they may consider as their defence. They and their solicitors will try to apply every defence that is possible, even if this is clearly not the case. For instance, they may say that your job is not 'like work' due to the scope and responsibilities, even if you feel you were doing exactly the same thing as your comparator. This is a standard tactic to try to have as many bites at the defence cherry as possible.

At the end of the day, the burden of proof is on the employer for Equal Pay cases. Although they may give lots of different defences, it will be up to them to prove each one - but it is always worth considering what evidence you have to disprove the defence, just in case. Equal pay cases are not cut and dried, so you need to cover all bases. Think about what they will say is different about the jobs and reasons for pay discrepancy, not just what you think is the same.

If you still feel that you are paid unequally, then see What do I do now?