Proving Discrimination at Work: What to do if you think you are being paid less than your peers

If you suspect or find out that you are being paid less than your peers, it can be difficult to know what to do about it. Here are some pointers to help you identify the best way to assess if you should be being paid more and the most effective way to raise this with your employer:

1. It is inevitable that people are paid differently at work and there may be legitimate reasons for this. For example, skill sets and experience may vary, as may scope and type of work. Before assuming that you are being discriminated against or otherwise treated unfairly, you should ask questions to understand why you have received the pay and/or bonus payments that you have. This can be done informally with your line manager or the relevant decision maker, but you should keep a written record of the explanations given.
2. Even where there is an element of discretionary decision making, this should still be based on objective factors, so it is worth establishing what those are from the outset. You should then consider whether your assessment against those factors is fair by comparison with your peers. Then consider whether performance against those factors is consistent with any differences in pay. It is permitted under the Equality Act 2010 for you to speak with colleagues about their pay. Whilst you cannot compel them to share details of their own pay, you should not be penalised for asking.
3. Equal Pay claims relate to differences in contractual (not discretionary) pay based on gender only, and look at comparative pay of men and women who perform like work, work of equal value or work rated as equivalent. If on the face of it there is a disparity in pay, the burden is on the employer to establish a genuine ‘material factor defence’ to explain the full extent of the difference in pay, which must not be related to gender. If they can, the disparity in pay will be lawful. If they cannot, then it will be unlawful and individuals can seek up to six years in back pay to rectify the difference.
4. The law on Equal Pay does not apply to sex discrimination in discretionary decision making or inequality of pay because of any other protected characteristic (e.g. age, race, disability, sexual orientation, religious belief etc.). In those cases, you would need to establish the difference in pay was because of the protected characteristic by comparison with someone who is in materially the same circumstances as you other than the difference in pay and the protected characteristic you are relying on. However, the Equal Pay principles are relevant to this, in that in order to identify the appropriate comparator and establish the necessary causal link, you need to show that your work is comparable that of your comparator, and that there is nothing else unrelated to the protected characteristic, that would explain the difference in pay.
5. It can be difficult to hear why you may be being paid less than a peer, but you should be honest with yourself about any explanations you receive. If you have a closed mind to this, you are less likely to be able to advance arguments to challenge those explanations, or to make reasonable requests of your employer (for example, an increase in pay if you meet specific KPIs over the next year). Taking the above steps and taking on board any criticisms should however, give you the confidence to ask for increased pay if you still think that is appropriate and your employer is in those circumstances, more likely to be receptive to your request.
6. If having taken the above steps your concerns are not allayed and you do appear to be being treated unfairly and/or paid less favourably because of a protected characteristic, then you may consider at that point, raising a formal grievance. See here for our blog on how to raise an effective grievance. You should consider carefully what evidence you have to support your grievance; performance appraisals, and email and whatsApp correspondence with your manager in relation to the factors against which pay decisions are made will all be relevant and you cannot start collating this sort of evidence soon enough.
7. Discussions around pay can be sensitive but you will be far more likely to get the result you want by taking a reasoned approach along the above lines, providing evidence to support your concerns rather than reacting in a knee-jerk manner to a disappointing pay decision.

Every case is different and law around Equal Pay and discrimination is complex. Please get in touch with partner Emma Sangeelee or any member of the Employment team if you need any guidance and support in raising concerns around pay with your employer. We are here to help.

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