With the FIFA Women’s World Cup in full swing, we are reminded of the issues in relation to equal pay.  The US women’s team famously brought a case for equal pay, and in 2021 the Football Association of Ireland confirmed that the Irish team would receive the same match fees on international duty.  This may well have sparked a direction change in terms of attitudes towards the women’s game.

Background

Beyond the world of sport however, it is worth remembering the rules around equal pay extend to all workplaces.  Firstly, the Employment Equality Act 1998 (as amended) prohibits direct and indirect pay discrimination.  This legislation has been supplemented by the Code of Practice on Equal Pay by the Irish Human Rights and Equality Commission (the “Code”).  The Code aims to provide practical guidance to employers and employees in respect of the right to equal pay.

The right to equal pay has developed through EU law.  Article 157 of the Treaty on the Functioning of the European Union provides the basis for law on equality.  That article sets of the principle of equal pay for men and women of equal work.

Right to Equal Pay

The right to equal pay for like work means that an individual who is performing work that is the same or similar or of equal value to that of another person employed by the same or associated employer, who differs in respect of one of the protected grounds (e.g., gender) has a right to be paid the same as the other person.  The right goes beyond gender and if the difference in pay for like work was based on any of the nine grounds (gender, marital status, family status, sexual orientation, religion, age, disability, race and being a member of the Traveller community) then a claim could be made for equal pay.  Notwithstanding this, the most common type of claim for equal pay is generally based on gender.

It is worth remembering that under section 20 of the Act, it is an implied term of a contract of employment that employees will receive equal pay for work of the same or similar or equal value.  This would override any express term which suggested otherwise.

“Like Work”

Section 7 of the Act outlines the meaning of “like work”.  It is considered to be like work where:

(a)    both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b)   the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each are either of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c)    the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

In order to be successful in a complaint for equal pay, the individual has to identify an actual named comparator; a hypothetical comparator would not be sufficient.

It is also worth remembering that whilst the phrase relates to equal pay, the relevant provisions of the Act refer to remuneration.  Section 2(1) defines remuneration as ‘any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment…’.  Therefore the definition is much broader than just the notion of pay, and an individual may bring a claim where their basic pay is the same but other benefits such as allowances or bonuses were different without an objective reason.

The Code

The Code is a helpful guide for employers and employees – both from the perspective of ensuring there is equal pay within an organisation, as well as providing for avenues to resolve any equal pay issues which may arise.

The Code highlights that employers ought to incorporate a job evaluation model, and, in doing so, this would be the most effective manner of eliminating pay inequality.  Importantly, the Code also suggests that employers involve employee participation in any review or change to remuneration practices and that doing so through a consensus is the best approach.  However, practically speaking, this could be difficult to achieve.  Nonetheless of working with employees on these issues is highlighted by the Code.

The Code also states that there should be informal and formal avenues of resolution available to its employees with respect to raising concerns on equal pay.  Finally, it suggests strategies that can be introduced to avoid future issues, like having a monitoring system in place and ensuring any benchmarking carried out is done without any bias.

Conclusion

The right to equal pay has perhaps been overshadowed in its own right due to the focus on gender pay gap reporting, and while they are connected, the issues are not identical.  What is clear is that whether the issue is around equal pay or the outcome of a gender pay gap audit, issues relating to equal pay in the workplace can result in a loss of management time dealing with these issues where they are not handled correctly, along with potentially disgruntled employees, claims and reputational damage.  It is always worth remembering the requirements of equal pay go beyond basic salary.

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