The Labour Party has announced that, should they win the next election, they would extend the specific equal pay rights, currently afforded to women, to cover ethnic minorities and disabled persons.

What would this mean in practice? In broad terms, this right would allow people who are members of an ethnic minority and/or disabled to bring specific claims where there is a pay disparity for equal work or work of equal value.

Current legal protection and rights for equal pay  

• If an employee or worker believes they have been paid less than a colleague on account of their race or disability, they could bring a claim for direct discrimination under the Equality Act 2010 on the grounds of the relevant protected characteristic; namely race or disability. Such a claim must be lodged with the Tribunal within three months (in all but the most unusual circumstances).  
• Employers are required to prove that the relevant protected characteristic was not the reason for the difference in pay.

Would this change ‘strengthen protections’ as Labour claims? 

• Equal pay claims do have longer time limits to be brought to the Tribunal compared to direct discrimination claims; six months compared to three months. However, Labour has announced in their Green Paper ‘A New Deal for Working People’, their intention to increase such time limits to bring discrimination (and other) claims to the Employment Tribunal so that difference may be immaterial.
• Employers are required to demonstrate that any disparity in pay is a ‘genuine material factor’ which is not the relevant protected characteristic. This is often seen as a more onerous evidentiary burden on the employer, and so one could foresee that claims may be more likely to succeed. 

It is worth highlighting that direct discrimination claims will remain for pay disparities and for differences not purely related to pay. These include broader benefits and treatment at work, pre, during and post-employment.  This new right will not affect those claims.   

Reaction from the business world has been mixed, arguing that such changes would only address horizontal pay discrimination, and not address the underlying issues of why women, ethnic minorities and disabled persons are more likely to be in lower-paid roles, rather than explicitly paid less for equal work or work of equal value.

Labour has also announced that it intends to make ethnicity pay gap reporting mandatory for businesses of a certain size, as it currently is for gender pay gap reporting.

We would expect further details to be announced throughout this election year and will continue to publish our commentary.

If you have any further questions on this or any other of the Labour Party’s proposals, please contact me or any other member of the employment and pensions team.