Equal Pay, Hypothetical Comparators, and the Equality Act 2010

The traditional equal pay model (in both the UK and United States) required the claimant to produce a real comparator. In other words, she must produce a man in the same employment doing equal work for more pay. This restriction hampers the closing of the notorious ‘gender pay gap’. In particular, it restricts claims in three scenarios. The first can arise in segregated occupations, typically portrayed in all-female sweatshops. As the law stands, female cooks in a shipyard may compare their jobs to painters, whilst cleaners at a coal mine may compare themselves to clerical staff, and seamstresses in a motor factory compare themselves to repair workers. But where these occupations are segregated fully, a comparison for equal pay was impossible. So the cook or the cleaner working for an all-female outside contractor, or the seamstress in an all-female sweatshop, has no claim to equal pay. The sweatshop’s seamstress may see her neighbour working for Vauxhall or Ford, being paid a lot more for the same work. As such, the National Minimum Wage legislation did more for these workers than the equal pay legislation. Second, although a woman can compare her pay to a male predecessor’s, she cannot use a male successor as a comparator (the theory being that this is a hypothetical comparator, perceived from the time of the unequal pay). Third, the traditional model does not permit ‘proportionate comparators’. This would be useful where, say, a woman may be doing superior work to a man and receive inferior, or at best, equal, pay. Although she can compare herself to a man doing inferior work, and achieve the same level of pay as him; she cannot claim for proportionally more pay than he receives. Alternatively, men doing superior work may receive disproportionately more pay. This paper explores how the changes made by the Equality Act 2010 can affect these scenarios