Pay discrimination

[HopesnDreams]

It has recently come to my attention that I am earning substantially less than some of my male colleagues (around £10k a year)... I'm absolutely livid, although have suspected it for some time. Obviously I will be raising it with my employer and hope to have it all sorted out very quickly, but the thing that makes me most livid is that I have probably been earning less for quite a few years and I will never get that money back. It's my own stupid fault for never raising it despite my suspicions... but if I can get my employer to admit that he has essentially been discriminating against me by paying me less, does anyone know if there is there any way of forcing him to to backdate any pay rise, or in some way compensate me for at least some of what I have missed out on? Employer will obviously try to explain away any differences, but I am confident that once raised, my salary will be brought in line with others as a similiar issue was raised and immediately dealt with while I was on maternity leave last year. Any advice will be extremely gratefully received!

Being paid less than some of your male colleagues is not de facto discrimination; it is only discrim if your gender is the reason you are paid less.

Even if that was the reason, you will not in a million years get an employer to admit discrim. He will just say there were other factors (eg the hiring salary he had to pay just for them to join company. There are loads of acceptable reasons).

So, you should of course ask to be paid the same going forward but you have no redress for pay going back (unless you can prove discrimination).

If you have other reasons to suspect discrimination is the behind it then that would change the position.

Equal pay is governed by its own legislation, not discrim legislation and it is possible to get back pay, but cases are long and complex and unlikely to endear you to your employer.

Are you absolutely sure of your facts? Is the difference is base pay or variable earnings? Are there any other differentials which could explain the gap - performance, qualifications, length of service, buy out of previous terms and conditions, different package?

How big a company is it and do yo have an HR dept?

Thanks both! I wouldn't actually bring any kind of action against my employer, I just want to be able to say that I know that I get less and that I am prepared to take it further (even though I'm not) and that I know my rights. I know the company - they will panic and rectify things very quickly!

I'm very sure of my facts indeed - there are no other differentials, although they could probably try and cite performance, but I have very good counter arguments and plenty to back it up. There was a big blow out about it all last year while I was off and it was all sorted out very quickly for some other female colleagues, but they clearly took advantage of the fact that I was on maternity leave at the time and didn't realise what was going on, so my pay wasn't brought in line with everyone elses. Very cheeky, and I will raise it with them now.

I just want to know if I say that I feel that I have missed out certainly for the last year, whether I have any scope to suggest that they might want to consider a one off payment to make up for their appalling cheek! There's no harm in suggesting it I think, even if they laugh me out of the office. I know it won't then affect my relationship with the company, but it will make a point that needs to be made.

To answer your question - it's a big company and we do have an HR department. It's just a very old fashioned company where old boy behaviour is still rife!

Thank you both for your replies.

What Herminone says. There is a quirk of law that means to make an Equal pay claim you just need to find one comparitor who is a different sex (everything else must be the same - qualifications, experience, length of service up to a point). It used to be the case that you could only have your pay brought in line with the comparitor and not backdated but recent case law means you can get the last few years difference back (6 from memory but I haven't double checked).

Your only way to force your employer to comply is by getting an employment tribunal ruling. You can make a case while still working for your employer. In the first instance raise it with your employer but your remedy is tribunal if they won't comply.

If you want to keep working there I would agree probably best to keep the conversation light and informal and avoid conflict. But I would ask too.

Good luck!

I have a comparitor - same qualifications and experience, but he's one year less qualified than me and has been working part time for a few years while I have been on maternity for one and part time for one. So we're more or less equal, or rather I should probably be just ahead of him. Taking into account slightly different productivity (and I'm happy for the company to calculate that and adjust accordingly - it would be perfectly possible to do so) I would happily say he's an appropriate comparitor. BUT he's been earning about £10k a year more than me for the last few years. I will look up the case law - if you can remember any names that would be a huge help KM - but I have access to westlaw and others so I'm sure I can find it. I really wouldn't actually take it to a tribunal but I'm not above threatening it!

I'm not too worried about the conflict aspect of it (and I'm naturally fairly informal and conflict averse) - I'm sure they will respond to my concerns without me having to make too big a fuss. Sadly my line manager isn't in today so I can't get my boxing gloves on just yet, but I'm ready for it!

Thank you all so much.

Sorry it's not case law - it's statutory law and in the Equality Act 2010. The back dating is for up to six years plus interest. I don't think it's been tested with case law yet but I haven't had a thorough look.

You can ask your employer to complete an Equal Pay Questionnaire, details here which might help to focus their mind a bit?

In the first instance asking about it in a "I'm sure this can't be right... can it?" way might serve you well.

It might be worth knowing that discussing equal pay for the purposes of establishing if there is any discrimination is allowed regardless of any contractual clauses about not discussing pay.

Just to make you aware, it is very very difficult to prove these cases where the role is professional/performance related. Much case law on this has been around very large employers where people do exactly the same work, day in, day out (eg factory line staff), or where they work to exactly the same terms and conditions and have same number of years experience and identical qualifications and where there are no performance factors to take into account (lots of classic case law around dinner ladies vs dustbin workers and suchlike). This doesn't mean that you shouldn't use or quote your rights under this legislation, just that the bar in proving such cases for professional individuals is much much higher, simply because there are so many variables at play.

One thing that helps you hugely but was not in your OP is that other women got a payrise whilst you were on maternity leave and you didn't. That bit in itself does look a bit damning for them. That's the bit I'd concentrate on if it were me, and I'd be pushing for a backdate to that point in time (presumably taking effect in practice as soon as you came back from ML)

Here's the stuff you need to mention discreetly in passing - it's a bit of an old case but I think it's still relevant for these things (BUT I am NOT a lawyer, so you may want to double-check)

In Alabaster v Woolwich plc and Secretary of State for Social Security [2004] IRLR 486, the ECJ held that UK statutory maternity pay (SMP) legislation does not comply with EU law in that a woman who receives a pay increase before the start of her maternity leave must be entitled to have the increase taken into consideration in the calculation of the earnings-related element of her statutory maternity pay, even though the pay rise was not backdated to the relevant reference period for calculating her entitlement under the Statutory Maternity Pay (General) Regulations. Under the current rules, a pay increase during maternity leave is only taken into account in the SMP calculation if it is backdated. The ECJ reasons that the principle of non- discrimination requires that a woman who still has a contract of employment or an employment relationship during maternity leave must, like any other worker, benefit from any pay rise which is awarded between the beginning of the reference period and the end of maternity leave. ?To deny such an increase to a woman on maternity leave would discriminate against her since, had she not been pregnant, she would have received the pay rise.? Since the decision was based on the equal pay provisions of Article 141 of the Treaty, it is directly enforceable against all employers, regardless of when the Government changes the SMP rules. This means that if a pay increase takes effect between the start of the SMP reference period and the end of the period during which SMP is received, the woman should be awarded the pay increase with effect from the same date as other staff. Interesting issues will now arise as to the rights of women who were incorrectly paid SMP by their employers and the time limits on any retrospective claims.

Katie - that's right, it's 6 years but that would only be achievable if I took it to a tribunal. I think it will just help me to be able to point out that that is what the law says. And thanks re the discussing pay thing - I was vaguely aware that it was ok, because of the incident last year!

Squiffy - you're spot on that the best bit about it all is that the other woman got a payrise after the issue was raised. That's also the reason that I know that they will deal with my concerns, and I think it would be realistic to suggest that they backdate to the point that I returned from ML.

ooh missed that bit about the maternity pay. Yes definitely raise it and point out they behaved badly regarding the maternity leave!