Equal pay: definition of pay

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Equal pay: definition of pay
  • The principle of equal pay for equal work
  • Meaning of 'pay' under Article 157 TFEU (ex Article 141)
  • Payments on termination
  • Pensions
  • Pregnancy and maternity pay

Equal pay: definition of pay

This Practice Note examines the principle of equal pay for equal work under the Equality Act 2010 (EqA 2010) and, in particular, what 'pay' includes.

The principle of equal pay for equal work

Article 157 of the Treaty on the Functioning of the European Union (TFEU) (previously Article 141 of the Treaty of Rome) establishes the principle that a worker is entitled to equal pay for equal work.

European law distinguishes between equal pay (provided for under Directive 75/117/EEC, the Equal Pay Directive) and equal treatment between men and women (provided for by Directive 76/207/EEC,the Equal Treatment Directive and subsequent directives). Directive 76/207/EEC, the Equal Treatment Directive does not apply to 'pay'.

The principle of equal pay for equal work has been said to be fundamental to the foundations of the European Union. Article 157 TFEU has direct effect, enabling a court or tribunal to disapply any barriers in domestic law that are incompatible with it. In Brierley the question arose as to whether Article 157 TFEU affords employees a directly enforceable right to equal pay in equal value cases (ie where the claimant’s comparator is someone doing a different job). However, the Court of Appeal declined to decide this issue as it was not necessary to the outcome of the appeal. Underhill LJ did, however, express the provisional view that the EAT in

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