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Ben Jones
Ben Jones, UK Lawyer
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I work for a government department. I am 1 of 2 women in my

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I work for a government department. I am 1 of 2 women in my grade (out of a total of 7). There is a £25k pay gap between what both of us earn (which is the lowest in the grade) and the pay of the best paid men (of whom there are 3). The other woman and I have consistently outperformed the men (by reference to the annual appraisal system) but no headway has been made to close the gap between us and the best paid men. We used to have a service based scale within the grade (and we are have had less time in this grade than others - in large part because we had longer careers outside the department). The service based scale fell away when pay restraint was imposed and HR have maintained it was never contractual so we had no rights to have it 'bought out'.

I indicated I intended to bring a claim under equal pay legislation some months ago but have been hoping for a solution to be found as I have been reluctant to enter into a dispute with my employer (I am in a fairly senior position). My employer has spent several months considering what it could do and I have been verbally told it intends to 'split' our grade and promote both the women to the higher grade, with a pay rise - but that would only make up about £10k of th3 £25k gap. And the best paid men would also be promoted to the higher grade although with a lower pay increase - so the residual gap would be over £15k.

Can I ask if you think it is worth pursuing a legal claim and what the likely costs would be and the time frame.


Sue Vivian

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What is the actual reason for the pay difference?
Customer: It is due to a service related progression scale which was effectively scrapped when the government imposed pay restraint several years ago. Had that been applied I would now be on the same rate of pay. Hr have maintained the service rated scale was non-contractual so we had no right to it or for it to be bought out. As things stand the pay differential will be maintained indefinitely.
Ben Jones :

ok but this service related progression scale - was that only dependent on service length? How is gender implicated in it that makes it a factor in the difference in pay?

Customer: Only by coincidence. I worked outside the dept for longer than the men who benefit by having been there longer
Ben Jones :

ok this will be a big flaw in your argument unfortunately - coincidence will not help you in any way to try and claim equal pay in this situation. In fact, 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.


Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer: Ok thanks. My employer is clearly nervous of a claim being brought which perhaps wrongly made me think I had a better case.
Ben Jones :

Employers generally would be, regardless of whether they have a case or not - a claim will mean additional costs to defend any claim, time and expenses will also be added so it is not unusual for them to be nervous about this, even if you have no valid claim

Ben Jones and other Law Specialists are ready to help you
Hello Sue, please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this? Thank you