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The Employment Relationship: Equality

Equal Pay

Men and women should receive equal pay (and other terms) for equal work. There is an exception to the prohibition on disparity of pay between male and female employees where the disparity is genuinely due to a material factor which is not either directly or indirectly discriminatory on grounds of sex.

If an employer fails to comply with the principle of equal pay for equal work, they will be liable to pay compensation and/or arrears of pay to the affected employee.

Employers with over 250 employees are required to publish annual information on their gender pay gap and the first reports for qualifying employers were due in 2018. The next submission deadline is 30 March 2021 for public-sector organisations and 4 April 2021 for private companies and charities. Employers must calculate the mean and median gender pay gap, the mean and median bonus pay gap, the proportion of males and females receiving a bonus payment, and the proportion of males and females in each “quartile band”. The calculations include employees, casual workers and certain contractors.

Discrimination

Discrimination is prohibited based on “protected characteristics”.

The forms of discrimination include: direct discrimination, indirect discrimination, harassment and victimisation. Further specific claims can be brought in relation to disability, including where the discrimination is “arising from the disability” or where the employer fails to make “reasonable adjustments”. Employees are entitled to bring a claim based on any of these forms of discrimination at any stage of the employment relationship, whether during the recruitment phase, during employment, or following termination.

It may be a defence to claims of direct age discrimination, indirect discrimination and discrimination arising from disability, to show that the treatment is a proportionate means of achieving a legitimate aim. However in practice it can be difficult to rely on this justification.

If an employee succeeds in a discrimination claim, an employment tribunal may award compensation to put the employee in the financial position they would have been in had the unlawful act not occurred. There is no cap on the compensation that can be awarded. In addition to the compensatory award, tribunals can make an injury to feelings award, which is capped.

Significantly, an employer can be liable for some discriminatory acts of its employees where these acts are committed “in the course of employment”. In effect, the employer is deemed to have committed the unlawful act of its employee. An employer may escape (vicarious) liability for acts of discrimination committed by its employees where it can demonstrate that it took “all reasonable steps” to prevent the employee from doing the discriminatory act in question, or from doing anything of that description. However, this defence has been interpreted narrowly and will be difficult to rely upon.

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