Is this an equal pay claim?

[Joyfulincolour]

I joined a large organisation 3 years ago. The job was advertised as a band 7 with a set pay band. Four of us started the job and it now transpires that one person asked for their pay to be matched to their current pay so was given a band 8. Another person requested the same and was started on the middle of band 7. Two of us who started on the bottom of band 7 have just found this out. Around a year ago, two new staff were recruited and were put on the band 8 pay scale. We all do exactly the same job! The two of us on the lower end of band 7 have approached HR and our Manager. Both have more or less said "that's just the way it is here." Can anyone advise whether we have an equal pay claim? The job advert definitely didn't say that pay was negotiable and it wasn't made available to all of us.

I agree with Flowery. OP take some specialist legal advice as it’s a complex area.

Stop making this about men v women because it doesn't have a place on this thread.

It absolutely does. Men are more likely to negotiate partly because they are more likely to be taken seriously when they negotiate, whereas women who negotiate hard are more likely to be seen as unlikeable and challenging and are less likely to get as good an outcome.

The fact that both men and women are paid more does not mean there's no inequality going on. It could be some of them are paid more because of their particular skillset or years of experience or because they are better at negotiating. There may be valid reasons for them being on more pay - but none of us can know that without further investigation, including the OP.

OP said both men AND women are being paid more than her

That does not stop this being indirect sex discrimination.

And yes negotiation plays a huge part in how much you're paid! Your biggest card is experience and why your should be paid more. That's negotiation and I don't see how that's unfair. If you aren't going to put forward your worth, why would the employer value you more if you don't value yourself more?

Because women are, in general, less likely to negotiate hard (and, indeed, less likely to promote themselves). Therefore, if an employer gives higher salaries to employees who negotiate hard for a pay rise that may be indirect sex discrimination.

It is similar to an employer requiring all employees to work full time. This may also be indirect sex discrimination as part time workers are disproportionately women. The fact that many women work full time would not stop it being indirect sex discrimination.

” And yes negotiation plays a huge part in how much you're paid! Your biggest card is experience and why you should be paid more.”

Well which is it? Is it negotiating skills or experience? You have no way at all of knowing that the people paid more than the OP are more experienced than her.

She has been given a reason for the unequal pay, and it wasn’t “John and Sue have a lot more experience/have xyz additional skills/are abc qualified”. It was “John and Sue negotiated.”

I find this thread astonishing.

Thanks everyone. I might have phrased this wrong in asking if it's an equal pay claim. If this was a group of all women and 2 had negotiated their pay at the start but this wasn't made available to all, is this an inequity that can be challenged via HR do you think?
In terms of experience, all of us were moving into a new field so we were all at the same starting point. With regard to experience, I have the most experience in the previous role. We are all doing exactly the same job and our performance in this current role is not dependant upon what we did previously.
Does that clarify things a bit?
Would the 2 of us on the lower pay be justified in persuing this? There is upto a £10, 000 difference in the pay (and obviously pension etc).

” If this was a group of all women and 2 had negotiated their pay at the start”

Well is it or isn’t it? You said it was men and women paid more? If men are paid more it’s a potential equal pay claim. If it’s only women then it’s not an equal pay claim, which doesn’t mean it is fair or shouldn’t be challenged.

I'm wanting to know whether I could take the situation up further with a union / legal rep. It's not about a male/ female issue, it's whether my colleague and I were at a disadvantage as we were not aware that pay was negotiable. Could we persue this saying the recruitment process was not fair and transparent and as a result a team of staff are all paid differently for the same job.

” I'm wanting to know whether I could take the situation up further with a union / legal rep....Could we persue this saying the recruitment process was not fair and transparent and as a result a team of staff are all paid differently for the same job.“

You could say those things yes, and you would be right. It isn’t fair. However I suggest you make up your mind quickly as to whether there are or are not male employees paid more than you. Because if there are, it may be an equal pay issue and therefore unlawful, giving you a much stronger position.

If not, if it’s just women paid more, then it is unfair but not unlawful, so you can complain but will have no legal case.

There isn’t an equal pay claim here, no.

To succeed in such a claim you need to demonstrate that the reason for the disparity in pay is your sex.

It isn’t - the reason is that they are in a higher pay band because they negotiated to be.

I also don’t think it’s indirect discrimination. Legally speaking you’d have to argue that a PCP of negotiating for higher pay puts women at a significant disadvantage compared to men - which IMO isn’t true. You have the choice whether to negotiate or not - it’s not like a requirement to work full time, where you might not have a choice due to childcare.

It probably is worth a grievance, but there isn’t likely to be a valid legal claim here.

If there is a genuine male comparator, women are entitled to equal pay with him (and vice versa) unless there is a material factor defence for paying the man more. No one here can possibly tell whether there is or not. Simply “they negotiated” wouldn’t imo be a material factor defence for unequal pay. Length of service, different skills, qualifications, higher performance, these types of things would be.

However OP now seems unsure whether the comparators are men and women or just women so it may be irrelevant!