It has been just over a month since the Lionesses won the European Football Championships, a feat their male counterparts have not managed to achieve. They are the first English football team to win a major international competition since 1966 and their success ignited a national interest in women’s football. Purely based on performance, the win is an achievement that merits being paid equally. For a number of years though, the women’s team was not receiving the same amount in match fees as the men. However, reassuringly since January 2020, England men’s and women’s senior players have been paid the same match fee and match bonuses for representing their country. Alongside England, the list of national football associations who have agreements regarding equal pay with the men’s and women’s team include Wales, Ireland, Brazil, Australia, Norway, USA and New Zealand. Although still a long way to go, the number of national football teams signing up to equal pay agreements in recent years is a positive step for parity in sport.
As the sporting headlines move back to covering the start of the Men’s Premier League season, where the pay discrepancy between the Men’s Premier League and Women’s Super League is much more obvious, it seems an apt time to remind ourselves of equal pay law in the UK. This was introduced to ensure that women were not paid less than men purely because of their sex. In most other employment environments, this position would be unacceptable, but in the elite sporting environment it is often excused due to the various market factors in play.
What is equal pay?
Put simply, equal pay law in the UK tries to establish the principle of “equal pay for equal work”. That is, men and women should receive equal pay for equal work. The law is now found within the Equality Act 2010, which implements the principle established in EU law by Article 157 of the Treaty on Functioning of the European Union. The law covers not only basic pay, but also gives individuals the right to equal contractual terms generally. It can stretch to commission, bonus, overtime, redundancy pay, benefits, pension entitlements and even holiday entitlements.
Who can bring a claim?
The law covers anyone employed under a contract personally to do work, so mainly employees and workers. These individuals are entitled to contractual terms that are as favourable as those of a comparator of the other gender in the same employment, if they are employed on equal work. We generally think of women bringing a claim for equal pay using a male comparator, but a male can bring an equal pay claim using a female comparator. There is also no minimum service requirement.
What counts as “equal work”?
Equal work means:
- like work: work that is the same or broadly similar;
- work rated as equivalent: work rated under a “job evaluation scheme” as equivalent; or
- work of equal value: work that demands, for example, equal effort, skills and decision-making.
Can the employer defend itself?
Employers can argue the material factor defence against an equal pay claim. A material factor is a material reason for the difference in pay that is unrelated to the employee’s gender. Material factors can be difficult to prove but include factors such as different working hours, market forces or geographical reasons.
What is the remedy for equal pay claims?
As equal pay claims are usually brought in an employment tribunal, an employment tribunal can make a declaration of the claimant’s rights and require payment of any arrears of pay or damages for breach of the implied equality term.
Based on the above, you may question why more female elite athletes have not attempted to bring an equal pay claim against their employer. It is probably due to the complex market forces, which would likely be relied upon as a defence by the employer and the fact that female and male athletes are often employed by separate entities (if they are employed at all). However, it would be interesting to see an employment tribunal’s conclusion if a claim was made…
