Legislation overview

The key legislation covering equal pay from 1 October 2010 onwards is the Equality Act 2010 which represents the most significant overhaul of the legislation since the Equal Pay Act 1970.

There are also many regulations under the Equality Act 2010 which affects equal pay, including:

  • Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (SI 2011/1069)
  • Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011 (SI 2011/857)
  • Equality Act (Age Exceptions for Pension Schemes) (Amendment) Order 2010  (SI 2010/2285)
  • Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (SI 2010/2279)
  • Equality Act (Age Exceptions for Pension Schemes) Order 2010 (SI 2010/2133) and (2010/2285)
  • Equality Act 2010 (Sex Equality Rule) (Exceptions) Regulations 2010 (SI 2010/2132)
  • Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011 (SI 2011 No. 1064)
  • Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (SI 2012/162) 
  • Equality Act 2010 (Equal Pay Audits) Regulations 2014 (SI 2014/2559). 

Previously the key legislation covering equal pay was the Equal Pay Act 1970.

The principle of equal pay for equal work originates with European legislation and can be found within Article 141 (formerly 119) of the Treaty of Rome which provides that men and women should receive equal pay for equal work. Great Britain courts and tribunals must therefore interpret the Equality Act 2010 and other legislation in a way that is consistent with Article 141 and European Union (EU) legislation such as Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. 

UK and EU equal pay legislation has historically been very complex and the Equality Act 2010 has not simplified equal pay issues to any significant extent.

The Equality and Human Rights Commission (EHRC) has published a comprehensive Code of practice on equal pay. The Code applies to England, Scotland and Wales and was published on 6 April 2011, together with another code on employment generally.

The Code must be taken into account where relevant in proceedings, and:

  • provides detailed explanations of the equal pay provisions in the Equality Act 2010,
  • applies the legal concepts to everyday situations,
  • does not impose legal obligations or give an authoritative statement of the law, but
  • can be used in evidence in equal pay claims.

In addition to the Code the EHRC website  also produces less formal information on equal pay. 

Q: Who does the right to equal pay apply to?

Q: What acts do the equal pay provisions of the Equality Act 2010 cover?

Q: How do the Equality Act 2010 equal pay provisions work in practice?

Q: Can an employee claim both sex discrimination and breach of the sex equality clause relating to a discrepancy in pay?

Q: What is the basis of an equal pay claim?

Q: Who is a suitable comparator in an equal pay claim?

Q: Is there a limit on the number of comparators that can be used in an equal pay claim?

Q: Can a comparison be made with a predecessor or successor in an equal pay claim and what happens if there is no comparator?

Q: How can employers defend equal pay claims?

Q: What is the material factor defence in an equal pay claim?

Q: What are the effects of secrecy (gagging) clauses preventing employees from discussing their pay?

Q: How can an individual enforce their rights regarding equal pay?

Q: What remedies does the equal pay legislation provide for a breach of the sex equality clause and what are the relevant time limits?

Q: Can questionnaires be used in equal pay cases?

Q: What are equal pay audits and what guidance is available?

Q: What is gender pay gap reporting and is it compulsory for employers to do this?

Q: What should an employer do if faced with a contingent equal pay claim from male employees?

Q: Are there any future developments expected in the area of equal pay?

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