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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46784
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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my employer has a pay scale but I an still at the very bottom

Resolved Question:

my employer has a pay scale but I an still at the very bottom of that scale.
I have been there 7 years.
My colleagues who have same job role and skills are at the top of the scale.
I do the same job but earn around £2000 pa less.
I feel my employer has an unfair pay policy.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How can you go up the pay scale - are there any conditions you need to meet?

Customer:

You were able to go up as each year passed. Since the austerity measures it was removed as a incremental pay scale.

Customer:

I work for the DWP as a civil servant. The vacancy advertised had the pay scale details. My employer has no money to pay the employee pay scale so I will never be able to earn the same as my peers even though we have same work with same responsibilities.

Customer:

You there Ben?

Ben Jones :

Sorry my connection dropped. The law on equal pay is frequently misunderstood. Many workers believe that there is a right to equal pay across the workforce, especially for workers that perform the same or similar jobs.

However, the reality is that employers are free to pay their employees whatever they want, as long as it is above the current National Minimum Wage and in accordance with the employee's contract of employment. It is not generally unlawful to pay employees doing the same or similar jobs different rates. The only time this would be an issue is if the reasons for the difference in pay is discriminatory, due to a difference in gender. The relevant law was originally brought in to deal with the fact that many women were being paid less than their male colleagues for doing the same job.

Whilst this protection still applies, to be successful in a claim you must show that the reason for being paid less is actually gender-related. It is no good claiming that you are being paid less than someone else, unless it can be shown that the reasons for this difference in pay is due to gender.

Even if there was evidence that the reasons for the difference in pay may be gender-related, the employer could still try and rely on the 'genuine material factor' defence to defend any equal pay claim. This would occur where the employer can show that the difference in pay is due to:



  • Past performance

  • Seniority or length of service

  • Different hours of work

  • Geographical differences

  • Different skills, qualifications and experience

  • Pay protection following job re-grading


So unless there were discriminatory reasons for the difference in pay, there is nothing illegal in paying different rates even if the workers are performing the same job. I agree that is appears unfair and morally wrong, but unfortunately it is not illegal.

Customer:

It is not illegal as you say but it is an unfair pay policy. The government is my employer and they are not being fair. I took the job 7 years ago BECAUSE of the pay scale. It is not a fair process to remove this from my contract and expect me to like it. I work hard and do exactly the same job but my colleagues earn 2k more. How is this allowed to continue.

Customer:

My contract has a pay scale. Can this be removed as they see fit?

Customer:

Ben

Customer:

Ben how long should i wait for reply

Customer:

Im sorry but this is not working for me

Customer:

It has been 50 min since your last reply

Customer:

40 min sorry

Customer:

i will have to sign out if no response soon

Customer:

Your last reply was at 20.10, got to go now

Ben Jones :

Hello, sorry I have been battling to get back on the site, but it appears t was down from my end for some time. Just managed to get back on so will continue with assisting you.

Another way to try and challenge this is to argue that it amount to a contractual change. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:



  • Receiving the employee’s express consent to the changes.

  • Forcefully introducing the changes (called 'unilateral change of contract').

  • Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.


If the changes are introduced without the employee's consent, then the following options are available:

1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.

3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.

Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.

Does this clarify things a bit more for you?

Customer:

Thanks Ben. It has been several years since that I made my initial protest. I have been in contact with a lot of different people/agencies in that time. My employer told me on several occasions that it had been agreed in 2005 with the unions before I was employed. So how can they advertise a vacancy with the scale if it is no longer available. We have had strike days every year over pay and conditions but get no where. I have had a less than inflation pay rise for 4 years which in effect is a pay cut.

Customer:

Added to this I will not in the foreseeable future earn the same money as my peers.

Ben Jones :

It is a difficult situation to be in, I agree, but the issue is that you cannot just make a claim against the employer and apart from the internal grievance the only way to realistically do anything and take it further is the resignation and constructive dismissal route. The next issue is that this must have been done without unreasonable delay, as soon as the breach became evident. If you knew of this policy all these years then it is highly unlikely that a claim now would get you anywhere due to such a considerable delay.

I'm sorry if this is not necessarily the answer you wanted to hear but I hope you understand I have a duty to be honest and explain the law as it actually stands and sometimes this does unfortunately mean delivering bad news from time to time. Please let me know if you need me to clarify anything.

Customer:

Thanks its been helpful.

Customer:

I'm not going to pursue this issue. I am going to resign as soon as I can get a new job. I have an interview on Thursday so finger crossed. Thank you Ben.

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46784
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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