UK Equal Pay Act (2026/27): How to Spot + Challenge Pay Discrimination
UK equal pay rights 2026/27: the three comparator tests, the material factor defence, the 6-year back-pay limit and how to gather evidence.
The three "equal work" tests
Like work
Same or broadly similar work. Job content matters more than job title - a "Senior Manager" and "Director" doing the same things qualify. Differences must be of "practical importance" + not just dressing.
Work rated as equivalent
Where an employer's job evaluation scheme rates both roles at the same level. The scheme must be analytical + non-discriminatory in design. Strongest claim where formal grading exists.
Work of equal value
Different jobs that are equally demanding in skill, effort, responsibility, conditions. Independent expert assessment via Tribunal procedure. Used famously in Asda (warehouse vs retail) + Birmingham City Council (refuse collectors vs school staff).
Landmark UK equal pay cases
- Asda Stores v Brierley [2021 UKSC 10] - retail (mostly female) vs warehouse (mostly male) workers. Supreme Court ruled comparison was permissible despite different sites + departments. Case continues on equal value + material factor stages. Estimated £8bn liability.
- Birmingham City Council v Abdulla [2012 UKSC 47] - extended limitation periods for ex-employees to bring equal pay claims in the High Court (6 years) rather than just the Employment Tribunal (6 months). Major win for legacy claimants.
- Hartley v Northumbria Healthcare + similar cases - nursing roles vs technician roles. Equal value findings in NHS settings.
- Tesco Stores - ongoing - similar structure to Asda. ~250,000 retail workers comparing themselves to mostly-male distribution centre workers.
Gender pay gap reporting and equality action plans
Two separate duties sit on employers with 250 or more employees, and only the first is currently binding.
1. Gender pay gap reporting (in force)
Any employer with 250 or more employees on its snapshot date must report and publish gender pay gap data within a year of that date. The snapshot date is 31 March for most public authority employers and 5 April for everybody else, which puts the publication deadlines at 30 March and 4 April respectively (GOV.UK, who needs to report their gender pay gap). Six figures are required: the mean and median gender pay gap for hourly pay, the mean and median gender pay gap for bonus pay, the proportion of men and women receiving a bonus, and the proportion of men and women in each pay quartile (GOV.UK, making your gender pay gap calculations). Published reports are the single most useful free evidence source for a claimant: they are searchable on the government service and they tell you whether the employer has a structural problem before you name a comparator.
2. Equality action plans (power in force, duty not yet)
Section 33 of the Employment Rights Act 2025 inserts a new section 78A into the Equality Act 2010. It provides that regulations "may require employers to… develop and publish a plan (an 'equality action plan') showing the steps that the employers are taking in relation to their employees with regard to prescribed matters related to gender equality". Section 78A(4) says those matters include "addressing the gender pay gap" and "supporting employees going through the menopause" (Employment Rights Act 2025, s.33).
Two things about the scope are worth being precise on, because they are widely misreported. First, section 78A(2) provides that the section "does not apply to… an employer with fewer than 250 employees" - the Act raises no obligation on smaller employers and does not lower the 250 threshold that governs gender pay gap reporting. Second, section 33 came into force on 6 April 2026 (SI 2026/323, reg 3(7)), but commencing a regulation-making power is not the same as imposing a duty. No employer is required to publish an action plan until regulations under section 78A are made and brought into force. The government's implementation timetable lists action plans on gender equality and the menopause as voluntary from 6 April 2026 and mandatory in 2027 (GOV.UK timeline update).
Practical effect for a claimant right now: a voluntarily published action plan is an admission by the employer about what it thinks is wrong with its own pay structure, and it is disclosable. Where one exists, read it alongside the pay gap figures before drafting a grievance.
Action steps if you suspect equal pay discrepancy
- Gather public data - the employer's gender pay gap report (if 250+ employees), Glassdoor data, public-sector salary disclosures.
- Identify potential comparator(s) - colleagues of opposite sex doing the same/equivalent/equal value work. Multiple comparators strengthen the case.
- Submit a Subject Access Request for your own pay records under UK GDPR - reveals your full pay history + how decisions were made.
- Raise an internal grievance citing the comparator + pay difference. Many cases settle here.
- Consult union or specialist - many equal pay claims run in collective form. UNISON, GMB, Usdaw + others have running campaigns.
- ACAS Early Conciliation + Tribunal claim within 6 months of ending employment (or relevant trigger). 6 years back-pay available.
Related guides
- UK Salary Negotiation 2026/27 - data sources for benchmarking pay.
- UK Employment Contract Red Flags 2026/27 - pay disclosure clauses (unenforceable).
- UK Constructive Dismissal 2026/27 - claim route if grievance fails.
- UK Shared Parental Leave 2026/27 - parental leave pay equality issues.
Frequently asked questions
What is equal pay law in the UK?
The right to equal pay between men and women doing equal work, set out in Part 5 Chapter 3 of the Equality Act 2010 (consolidating the older Equal Pay Act 1970). It applies to all contractual terms - base salary, bonuses, overtime rates, holiday pay, pension contributions, benefits in kind. Not just headline salary. The protected characteristic is sex (gender) - other forms of pay discrimination (race, age, disability) are covered by general indirect discrimination provisions, not specifically the equal pay framework.
Who do I compare myself to?
A real (not hypothetical) opposite-sex employee of the same employer, doing equal work, on a single source of pay (same employer or associated employer, or where both pay sources can be traced to a single body). The comparator does NOT have to be at the same workplace - cross-site comparisons are valid if the same employer. The comparator does NOT have to be currently employed - predecessors are valid. You can name multiple comparators. The employer chooses who to defend against; the claimant chooses who to compare to.
What are the three tests for "equal work"?
Section 65 Equality Act 2010 sets three routes: (1) Like work - same or broadly similar work. (2) Work rated as equivalent - where the employer's job evaluation scheme rates both roles equally. (3) Work of equal value - different jobs but equally demanding in skill, effort, responsibility, conditions. Most large equal pay cases run on equal value. The Tribunal can appoint an independent expert to assess equal value - lengthy + technical process. See the detail table below.
What's the "material factor" defence?
The employer can defend an equal pay claim by showing the pay difference is due to a "material factor" that is NOT sex-related (Section 69 Equality Act 2010). Common material factors: differences in skills, qualifications, performance, market forces (genuine recruitment difficulty for that role), red-circling (pay protection after restructure), regional pay differences. Material factor must be (a) the real reason for the difference, (b) significant + relevant, (c) not directly or indirectly discriminatory. "Market forces" defence is most contested - has to be evidenced, not asserted.
How far back can I claim?
6 years of back-pay in England + Wales (5 years in Scotland) under Section 132 Equality Act 2010. The claim itself must be brought within 6 months of leaving the employment (or, if still employed, 6 months from when the pay difference would otherwise have ended). This 6-month time limit is unusually short for an equal pay claim - much shorter than the 3-month + 6-year limits for many other claims. Significant back-pay awards in Asda + Tesco + Birmingham cases ran to £20,000-£50,000 per employee.
What's a gender pay gap report and how does it help me?
An employer with 250 or more employees on its snapshot date must publish gender pay gap statistics within a year of that date. The snapshot is 31 March for most public authorities and 5 April for everybody else, so the deadlines are 30 March and 4 April. Six figures: mean and median hourly pay gap, mean and median bonus pay gap, share of men and women in each pay quartile, share receiving a bonus. Use the report as an evidence base - a large gap suggests systemic issues. It shows the GAP, not a specific role comparison, but it reveals patterns worth investigating.
Does the Employment Rights Act 2025 change gender pay gap reporting?
Not the 250-employee reporting threshold. Section 33 of the Act inserts section 78A into the Equality Act 2010 and lets regulations require employers to publish an "equality action plan" showing the steps they are taking on gender equality, which the section says includes addressing the gender pay gap and supporting employees going through the menopause. Section 78A(2) states that the section "does not apply to an employer with fewer than 250 employees". Section 33 came into force on 6 April 2026, but it is a regulation-making power, so nothing binds an employer until those regulations are made. Action plans are voluntary from 6 April 2026 and the government timetable puts the mandatory version in 2027.
How do I gather evidence?
(1) Internal grapevine - colleagues willing to share salary info (though many contracts try to ban this, such clauses are unenforceable per Section 77 EA 2010). (2) LinkedIn / Glassdoor / job ad data for the role. (3) Internal job grading documents if accessible. (4) Subject Access Request (SAR) under UK GDPR for your own pay history + role history. (5) The s.138 equal pay questionnaire procedure was repealed in 2014, but the EHRC produces a voluntary questionnaire that some employers will complete. (6) Public sector + listed company gender pay gap reports. Most cases need union or specialist support to gather systematically.
Should I raise it via grievance or go straight to Tribunal?
Grievance first is normal practice + recommended by ACAS Code. Many large cases settle at grievance level once the employer realises the comparator data is solid. If grievance fails or is delayed, ACAS Early Conciliation (free) for 6 weeks, then Tribunal claim within the 6-month time limit from leaving (or the relevant trigger event). Costs of equal value cases are high (independent expert fees) - usually run with union backing or in collective claims. Solo claims for clear cases are still viable. Compensation is uncapped - much higher ceiling than ordinary unfair dismissal.