Discrimination cases make press headlines and, as recent cases demonstrate, the legal profession has not escaped scrutiny. Law firms have grappled with ‘topical’ discrimination issues, such as partnership prospects for female lawyers and flexible working. But they should not forget a fundamental question: what if female lawyers are being paid less than their male colleagues?

The equal pay claim is one of the least understood sex discrimination claims, but is becoming increasingly popular. Government statistics show a gender pay gap of 18% for full-time workers and 40% for part-time workers. Law firms should not be complacent: they operate in a profession that has traditionally been male dominated, and where pay structures are often opaque.


The Equal Pay Act 1970 outlawed pay discrimination. It implies an ‘equality clause’ into every contract of employment at an establishment in the UK. It stipulates that a woman (or man) is contractually entitled to equal pay with every man (or woman) in the same employment who is doing like work, work rated as equivalent, or work of equal value, unless the difference in pay is genuinely explained by something other than sex.


A claimant must therefore choose one or more comparators. In practice, the comparative assessment can prove complex (what is a job of equal value?), and an independent expert is frequently instructed.


Equal pay cases are usually onerous for employers. This year the government launched a consultation process with the aim of speeding them up.


Notoriously long and involved, claims force employers to look into their pay practices and reveal sensitive information.


Claimants can serve equal pay questionnaires, involving employers in a difficult balancing act: responding to the questionnaire (otherwise, adverse inferences can be drawn by the tribunal) and respecting their duty of confidentiality to other employees.


The financial impact of the claim can be substantial. Remedies include not only equalising contractual terms for the future but awarding compensation of arrears of pay for up to six years before the date proceedings were instituted.


So what can your firm do? Steps to reduce exposure include:


• Have transparent pay structures and grading systems;


• Carry out well-documented appraisals so employees are aware of their performance and you have evidence to support this;


• Familiarise yourself with the Equal Opportunities Commission code of practice on equal pay. While the code is not binding, a tribunal may take into account an employer’s failure to act on its provisions.


However, beware: the code recommends that employers carry out equal pay reviews. Although a tribunal may look favourably on an employer who has taken this step, it should only be done if you are dedicated to tackling any problem. Otherwise you may just create evidence that may be used against you.



Meena Tostivin is a lawyer in the employment team at City firm Fox Williams