The official June 2008 White Paper on the Equality Bill said that it would “ban pay secrecy and ‘gagging’ clauses which stop employees discussing pay with their colleagues”. The idea, of course, was to remove one of the practical difficulties sometimes faced by employees (generally women) seeking to bring equal pay claims on the basis that they are paid less than employees of the other sex who have been doing the same work, work of equal value or work rated as equivalent.

As eventually enacted the Equality Act 2010 does not do what the White Paper said. The basic idea is still there but the wording means that implementation of the idea is considerably more complicated than the simple wording of the White Paper suggested it would be.

On the other hand the Equality Act goes further than the extract above from the 2008 White Paper might suggest as it covers discussion of pay with third parties as well as with colleagues. Also it makes it unlawful for an employer to victimise an employee for seeking to enforce the rights it provides.

The most important difference between the original simple proposal and the eventual enactment is that the final version applies only in so far as the employee “makes or seeks to make a relevant pay disclosure”. This is defined as a disclosure “… made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having)…” any of the protected characteristics covered by the Act.

It is easy to see that this definition may lead to some difficulties. A pay disclosure is “relevant” only if it is made for the specified purpose. If it was made from some other purpose the Act will apparently not apply even if the information disclosed is later used for the specified purpose.

Separately but also connected with removing difficulties in the way of employees bringing equal pay claims, the Equality Act provides specific encouragement in the shape of informal “threat” of compulsion if encouragement has not worked by 2013 for larger employers (those with 250 or more employees) to publish information about differences in pay between male and female staff.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.