Preferential pay protection: Does UK law provide poorer protection to those discriminated against on grounds of protected characteristics other than gender?

Published date01 March 2019
Date01 March 2019
AuthorMargaret Downie
DOI10.1177/1358229118817163
Subject MatterArticles
Article
Preferential pay
protection: Does UK law
provide poorer protection
to those discriminated
against on grounds of
protected characteristics
other than gender?
Margaret Downie
Abstract
UK law treats equal pay claims based on gender (brought under the equal pay provisions
of Part 5 Chapter 3 of the Equality Act 2010) differently from equal pay claims based on
other protected characteristics of age, disability, gender reassignment, marriage and civil
partnership, pregnancy and maternity, race, religion or belief, and sexual orientation
(brought under the general discrimination provisions in Chapter 2 of that Act). This
article considers the impact of the differences on each group of claimants. It concludes
that the separate system of equal pay for the protected characteristic of sex ignores
other inequalities of pay and that the inconsistent way the United Kingdom treats these
issues leads to inequality among disadvantaged groups. It recommends that the United
Kingdom should take a more consistent approach to pay gaps.
Keywords
Equal pay, pay gaps, protected characteristics, transparency, remedies
Law School, Robert Gordon University, Aberdeen, UK
Corresponding author:
Margaret Downie, Senior Le cturer, Law School, Robert G ordon University, Garthd ee Road,
Aberdeen AB10 7QE, UK.
Email: m.downie@rgu.ac.uk
International Journalof
Discrimination and theLaw
2019, Vol. 19(1) 4–25
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1358229118817163
journals.sagepub.com/home/jdi
Introduction
In the United Kingdom, a claimant who wishes to claim equal payon grounds of sex must
usually make a claim under Part 5 Chapter 3 of the Equality Act 2010 (2010 Act). A
claimant who wishes to claim equal pay on the ground of one of the other protected
characteristics
1
has to use the provisions of either section 13 or section 19 in Chapter 2
of the 2010 Act which are the general provisions prohibiting direct and indirect discrim-
ination.
2
This article argues that the separate gender pay provisions mean that gender is
advantaged over other protected characteristics when it comes to equal pay. The article
compares each type of claim to determine which is most effective in achieving equal pay
and equality in terms of employment. The article examines the issue in relation to direct
and indirectdiscrimination, the comparator, burden of proof,employer’s defence, enforce-
ment and transparency. The term ‘pay’ should be read to include terms of employment as
the provisions are generally the same. Where there is a difference this will be indicated.
Pay gaps
Society has acknowledged, since the 1950s, that women tend to be paid less than men for
work of equal value. Statistics collated over the years and considered below confirm that
this is the case.
The average gender pay gap in Europe was 16.1%in 2014
3
and 20%in 2016.
4
There
also remains a significant pay gap between men and women in full-time work in the
United Kingdom. The median gender pay gap for full-time workers was 9.4%in 2016
and 9.1%in 2017.
5
The gender pay gap remains a matter of concern for the European
Union (EU) and the European Commission (EC) has acknowledged that existing legis-
lation had done little to close the gap.
6
In 2017, the EC published an analysis of the
results of their consultation ‘Equality between Men and Women in the EU’ concluding
that ‘over the last years gender pay gaps had been plateauing’.
7
Transparency in gender pay in the United Kingdom has been promoted by the intro-
duction, in 2015, of pay audits as a remedy in equal pay cases and the recent introduction
of compulsory gender pay gap reporting for public sector employers
8
and employers
with 250 or more employees,
9
which has produced a flurry of contentious pay gap reports
and generated a great deal of media attention. Notable examples include Apple with a
median pay gap of 24%, Ryanair with a median gender pay gap of 72%and JPMorgan
with a median gender pay gap of 54%.
10
The pay gap resulting from other protected characteristics has received much less
media coverage. The European Parliament has noted that pay inequality due to other
protected characteristics such as race, ethnicity, sexual orientation or religion must not
be tolerated,
11
but until recent years statistics confirming the extent of these pay gaps
were not so readily available. The UK Annual Survey of Hours and Earnings does not
collect data relevant to protected characteristics other than sex, and the inf ormation
available from the Labour Force Survey on this topic is fragmented. However, other
research indicates that there are significant pay gaps in relation to other protected
characteristics. In 2009, an Equality and Human Rights Commission (EHRC) report
12
confirmed shortcomings in the research and statistics available and found that there were
Downie 5

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