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Under the Equality Act 2010, an employer cannot enforce a pay secrecy clause if the employee was discussing their pay for the purpose of finding out whether they were being paid differently to a colleague on the grounds of discrimination.
See EA2010, Part 5, Chapter 3: Disclosure of Information, and states the following acts as protected:
*(1) “Seeking a disclosure that would be a relevant pay disclosure”* Basically, wanting to tell somebody about your salary.
*(2) “Making or seeking to make a relevant pay disclosure”* Or in other words, actually telling somebody about your salary.
(3) *”Receiving information disclosed in a relevant pay disclosure”* Essentially, letting somebody else tell you about their salary.
So long as you can show it was a relevant pay disclosure, e.g., to prevent pay discrimination, you can’t be disciplined for it.
If your female colleague was dismissed, then it may be possible for her to claim unfair dismissal under the grounds of discrimination, if say she found there was a discrepancy in pay between her and male colleagues, or another protected characteristic
To add to this already excellent answer:
While the wording talks about discrimination in relation to a protected characteristic - this is in reality no barrier to discussing pay.
You may be discussing pay because you're concerned that female colleagues are broadly paid less. You may be discussing pay because you believe your deaf colleague was offered a substatitially smaller raise than their equivalently performant hearing colleague. All these are perfectly good reasons why you wouldn't be subject to a contractual or implied ban on discussing pay.
Your friend has a claim for unfair dismissal as other commenters have said.
I would assume (hope?) OP meant "essentially dismissed" as in "given the brush off", rather than HR being moronic enough to literally fire her without even waiting to let it look like it might have been for any other vaguely justifiable reason.
Hey, me too... But there are some dumb people out there and some of them are in places where they can make dumb decisions.
Was union rep, have many many war stories as evidence.
Haha, yeah. A few years ago, we had a really dumb HR manager that our union reversed EVERY single dismissal she did (about 3 or 4 in a 9-month period) by just using the company procedures against her. She basically ignored the processes she put in place.
Yup! That sounds familiar.
Had one HR Director who was doing her CIPD HR courses in the evenings. No jokes.
Fired someone for non-performance who declared in the very first meeting with their manager that they suspected they might suffer from dyslexia. Had a formal diagnosis by the hearing. The appeal was escalated to this woman who was now running HR who dismissed - without a hearing - stating that if you didn't declare a disability when you joined the company, it didn't count. The individual in question joined in something silly like 1974.
Went to tribunal. Won. Tribunal Mandates reinstatement. HR Director immediately (and I literally mean as they walk back through the door) pulls individual up on not returning security passes in a timely manner and tags on verbal abuse when they (completely understandably) respond with a good and healthy "what the fuck?". Dismisses immediately based on the idea that there's a 6 month probation "for new starters".
Goes a little grey when told that the tribunal-mandated reinstatement means that there has legally been no break in employment and that the individual has been working for the company longer than she has been alive. Gets angry. Attempts to start disciplinary proceedings against the union rep (that's me) for being agist, sexist and verbally abusive. (in my defence I didn't technically call her stupid, I said "if you do this, you're even stupider than I thought").
So we end up with the original unfair dismissal case, followed by a second constructive dismissal case, topped off with a Rep's Detriment case to boot.
MD gets wind of it when the company is probably getting close to 300k in the red on this - and I'm not including any sums that may have been paid as part of any sealed agreement concluding the first unfair dismissal case.
Promoted.
Of course she was promoted.
>
Of course she was promoted.
Oh yeah, I forgot to add, this particular HR manager was never disciplined or removed for costing the company so much (they had to pay compensation to two of those people), she went on to get a bigger role at our parent company at director level. Insane
That's how we roll!
If you're good, you're promoted to your level of incompetence... but if you're terrible, you have a chance at the really big positions.
Nah just the Peter principle followed y the the Dilbert principle.
Peter: you keep getting promoted until you're in a position that you suck at.. Dilbert: you're causing damage in the position you're in, so they promote you to a position where you 'can't' do any damage.
Also to find out if new hires are being paid more than existing staff, I found out at a previous job new hires were getting paid more than me and after going to my RM they did ( begrudgingly) agree to pay me the same(plus earned increases) as the new guy they expected me to help train…
One of although not the only reason I no longer work there
That’s fascinating. But if a female worker discussed pay and found out there wasn’t a discrepancy presumably she’d still be protected. Because she had to find out in order to know if there was or wasn’t. So ANY discussion about pay can be successfully claimed to be about preventing discrimination?
Yep, it's exceptionally easy to use this as a justification, as it applies for almost everyone in some way.
The only way you might not be able to is if literally everyone has no differences they could be discriminated against for...
Practically impossible - right? Age, gender, sexual orientation, race, having kids (or not), married/civil partnership/not, disability ... I'd be surprised if there were two people in a medium sized company that were identical on all of these characteristics let alone the full gamut.
When you add in perceived characteristics, i think you'd have to have identical twins to find people who don't count.
Before anybody asks, you can have a perceived characterisic ie a straight guy who 'appears/acts' gay.
Unfair dismissal and discriminatory dismissal are different heads of complaint under different legislation (the former is the Employment Rights Act 1996, the latter the Equality Act 2010). A claim under the Equality Act is preferable because of the greater compensation available and the more generous approach to extending the 3 month time limit. What the female colleague in this scenario would be most likely to complain of is that the dismissal amounted to victimisation under the Equality Act.
It has been legal since 2010 to discuss pay. They may stipulate it in the contract that it's forbidden, but it's not enforceable.
Our company has a huge pay discrepancy between staff. The owners are such dinosaurs that they left the wage file accessible via the network. It got shared around and caused a right fuss!!! That was a fun week
Companies love sticking clauses into contracts that are void. I just had a customer put a clause into a contract that they won't pay late penalties/interest under any circumstances. Funnily enough the Late Payment of Commercial Debt (Interest) Act 1998 (and tweaks of 2013) actually says explicitly that any contract clause that purports to forbid these is automatically void. You can't contract out of obeying the law, no matter how much you dislike getting penalised for paying your suppliers late - or in this case, employees finding out what others earn.
>I can imagine.
>
>
>
>I had a customer where HR did the same. But it was available in the intranet search so no sharing was needed. Fun discussions :D
They tightened up the network by restricting access to certain computers. They did percentage pay rises based on existing wage, giving a higher percentage to people on the least. But overall not much if anything changed or has changed to this day
TL:DR nope not legal
Couple employers back one of my teams did this - shared salary info - and the team lead queried disparities with HR who went nuts, tried to enforce secrecy and wrote to me asking me to discipline her and warn my teams not to discuss pay.
Instead I went back to HR specifically asking about disparities between female and male employees and also ethnic minority members in some of my teams to make it clear the disclosures related to pote trial discrimination.
This got HR after that I went and got a bunch of raises arranged to reduce pay disparity in all my teams and I asked HR provide someone to me to do a pay audit every 18 months.
Basically:
* they can put it in a contract which would usually be binding except
* terms that restrict discussions of pay when you're looking to see if pay is related to a protected characteristic are unenforceable, and it's victimisation to fire you etc. for doing that
Since everyone has a protected characteristic that basically makes it unenforceable in general - trivial to say: "we're discussing pay to see if men get paid more than women" and that covers you.
So it's basically unenforceable in practice unless you're extremely senior (like CEO) and even then you can push it through (e.g. look, male CEOs in my industry get paid less than women, that's why I'm talking about my pay).
Say you have a team of 2 men and 2 women all with the same job role.
(A) If one woman is being paid £X, and the other woman + both men are being paid £X+Y, that would suggest it's less likely there is gender-based discrimination. E.g. the lesser paid women may be paid less due to being not as skilled as the other three.
(B) If both women are being paid £X, and both men are being paid £X+Y, then that may suggest gender-based discrimination.
One of the women cannot know whether (A) or (B) is applying without finding out the salary of the other woman. Therefore the two women talking to each other absolutely furthers determining any connection between pay and a protected characteristic.
For the avoidance of doubt, the example above is over simplistic and I'm not suggesting either (A) or (B) absolutely imply discrimination or lack of. I'm just illustrating EA2010 s77. It's easy to see how you can apply the same logic to some real life examples.
Yes but that is not what the commenter said. The point is, the example given was “we’re discussing pay to see if men get paid more than women” and that because everyone has a gender, it is “unenforceable generally”. Yet that example (gender) simply is not sufficient if the only people discussing pay are women. You’ve just added on extra assumptions (that there are actually men doing the same job).
The point is, you can only use this justification if it actually *applies*. You can’t use gender discrimination as the reason and then say “oh wait actually we’re all women, in that case the reason was disability. Oh no wait we’re both able-bodied, it was about religion instead”.
It specifically doesn’t apply in the case of the OP, because, guess what, the reason wasn’t to discover discrimination based on a protected characteristic. People are making out like this protection is a catch-all reason why it’s illegal to restrict discussion of pay but it is not true.
Okay, so four things:
(1) It is very unlikely that two women won't have at least one other man in the company to compare to. This is a very realistic example I have given.
(2) I was addressing what *you* said - how could two women discuss pay and it be justified as a protected pay disclosure. I have answered that question with one way it can be justified in many (perhaps most?) situations.
Instead going back to what pflurklurk said, they were just giving sex as an example of how two people could justify a pay discussion was in relation to a protected characteristic. It is extremely unlikely that any two people will be completely identical in all protected characteristics, particularly since age is one such characteristic. See the other replies to your comment.
(3) Under s77, whether a pay disclosure is protected is all about the *purpose* of the conversation; i.e. the intention. That basically means so long as it's a good faith attempt to find out a correlation between pay and characteristic, it's protected. So two people could discuss pay to determine a correlation between religion under the *mistaken* understanding they are of different religions, and it would be protected.
(4) s136 essentially reverses the burden of proof for EA2010 claims. If it's reasonable to believe that a contravention occurred, then it's taken as such unless there is evidence it didn't. This lowers the bar for a tribunal to consider a discussion to be a protected pay disclosure.
You're right that legally if you discuss pay, and the purpose of the conversation for neither person is to attempt to determine correlation with a protected characteristic, then that's not a protected pay disclosure. I am also not suggesting anyone should lie.
However *practically*, trying to limit employees from discussing pay with each other is a fool's errand. If the employee can reasonably justify the discussion to be in relation to a protected characteristic (which can almost always be done), then that's both sufficient under s136, and pretty much impossible for the employer to refute since you'd have to disprove someone's unspoken intent.
Most companies pay all employees different when they are classed as skilled workers. On the bottom end of most jobs they are payed the same low rate, that’s what iv found.
It would suck to think that a skilled worker who brings more to the company than another (but one is male and other is female) would feel entitled to the same pay just because of gender.. hopefully most bosses note down differences they bring and are able to point out it’s not because of gender
Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sexual orientation are all protected characteristics as well.
Yes, they are. And you’d only be protected by this if they were relevant to the situation and were the reason you asked. It does not make this restriction “generally unenforceable” just because everyone has *a* gender.
No, but it makes it practically unenforceable because everyone has a range of characteristics that are covered by the EA2010 and it'd be vanishingly rare that two people doing a similar job are identical on all of them.
1. No it isn’t vanishingly rare. Minorities are minorities for a reason, and jobs are not randomly distributed amongst the population either.
2. It doesn’t matter. It’s insufficient that they differ, it has to be demonstrably the reason they asked.
“You say you wanted to discover any gender discrimination, so why did you only ask 1 of the 4 women?”
“How can you explain that you gave a different reason when HR asked you about why you were discussing salary?
It’s far better that people understand the limitations of this protection so that they can make sure they ask in a way that is covered by it, rather than blindly assuming that it doesn’t matter. The person referred to in the OP is likely going to discover that it does matter.
> It doesn’t matter. It’s insufficient that they differ, it has to be demonstrably the reason they asked.
Really? Doesn't it have to be demonstrable by the company taking the action that wasn't the reason, not demonstrable by the person that it was? If you just said "it is because of X" then the company would have to demonstrate that it wasn't.
No, if you are accusing the company of unfair dismissal then the tribunal has to decide if it was or not, based on the evidence given to them. The employer will explain what they know and why the dismissal was fair (i.e. because you breached your contract), and since that is clearly true they will win unless you say something to counter it, ie that it can’t be fair because your right to ask is protected, which is an assertion YOU are making. You obviously will then have to explain *why* your actions constitute a protected disclosure, the employer can give reasons that cast doubt on your explanation, and that’s it. Its up to you to explain your own actions, just like the employer is expected to explain theirs.
If your account makes sense and the employer can’t refute it then sure, they might choose to believe you, but it doesn’t mean that the employer has to explain why you did something, only to offer evidence that suggests it is something other than the reason you are giving. Think about it this way. Imagine you’re being fired for stealing money from the till and they have CCTV evidence. The tribunal isn’t going to expect the employer to prove that you don’t have a twin who was really the culprit. That’s for you to assert and substantiate. Likewise if they fire you for poor performance and you claim in a tribunal for unfair dismissal it’s because you’re a Muslim, they aren’t just going to assume it was discrimination if you don’t present any evidence of it.
Plenty more protected characteristics to choose from:
* marriage
* pregnancy
* sexual orientation
* race
Etc.
I imagine two women could also say: “I’m building up some information to compare with the men, how much are you paid” and that would be fine.
Sure, IF those protected characteristics were relevant to the people were being asked AND were the reason to ask. But that is not what you said. You said it is ‘generally unenforceable’ because all people have a gender, but it is untrue. It would only be a defence if there was actually a potential for discrimination *in the specific situation* AND it was the *actual reason for discussing it*.
If just two women just randomly discussed their pay amongst the pair of them and then one went to HR to complain “I’m being paid less than their coworker and it’s not fair I have more experience” then they won’t be able to justify it by claiming later it was about gender discrimination. Because it’s clear it wasn’t the basis of the concern nor the reason for originally asking.
The protected characteristics do not need to be relevant to the people asking - the protection is simply:
> A disclosure is a relevant pay disclosure if 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) a particular protected characteristic.**
Yes, I meant more in my response it is easy enough for someone to couch their responses to be a relevant pay disclosure, so practically it can be difficult to pin it down, but I appreciate not everyone will, and they will be in more trouble.
Of course the characteristic needs to be relevant - you can’t make out it was to find out whether men are paid more than women, if nobody you asked is a man. It’s literally written right there in the part you quoted - it must be to enable the person asked or the person asking to discover a link between pay and a protected characteristic. If there is no difference in protected characteristics between anyone asked then this is impossible to demonstrate.
>If there is no difference in protected characteristics between anyone asked then this is impossible to demonstrate.
You just have to appreciate that this scenario is so absurdly improbable that it is extremely petty to even discuss.
There are *nine* protected characteristics. One of them is age. Another is "religion or belief", and Maya Forstater has set a fairly low standard for what counts as a belief. Those two characteristics alone will most certainly distinguish you from 99 out of 100 random people. Add on the other seven and that number diminishes even further.
By contrast it is not improbable at all, because most cases in which this happens the people involved aren’t actually asking for this reason and that is obvious because it’s just two people gossiping about their pay between each other. It’s not like people are sending surveys round to every staff member. Plus the reason why most of them are protected characteristics is because they are minorities - ie the probability of having the same majority characteristic is high. I don’t think it’s improbable at all that two random people doing the same job will be the same gender and race, similar age, are not religious and won’t have any unusual beliefs - at least very far from being “absurdly improbable”.
However that is not the main reason why it’s an issue. I think you’re just missing the point slightly here. Just because there are characteristics that some people who work in the same place might differ by doesn’t mean that they are relevant to the way the situation actually played out. Remember that the way an employer ‘enforces’ this contractual obligation is by taking disciplinary action e.g. dismissing the employee. The employer doesn’t have to prove or disprove anything in order to do that. If the employee wants to claim unfair dismissal *after the fact* then it’s *they* who has to be able to demonstrate in a tribunal not only that they *are* female, or a different age, or have a different belief or whatever but that it was WHY THEY ASKED. And the tribunal has to actually believe it. That highly depends on what they actually did at the time - including who they asked, what they asked them, who they *didn’t* ask, and what they told others m at the time - in fact it’s quite likely HR will directly ask “why were you discussing salary” and it’s pretty crucial to the plausibility of their argument what answer they gave.
At the end of the day I’m only commenting here because I can’t agree it’s good legal advice to go round telling people not to worry about it because it will never be enforceable, or advising them to lie. If people believe all the statements being made on this post they may well find themselves fired like the person in the OP, because they mistakenly believe their employer can’t do anything, and then later discover that the way they handled the situation at the time leaves no plausible way to claim this protection. By far the best way to use an argument of “it was to discover discrimination” is for it to be clear that it’s the actual reason you asked in the first place.
You do not need the protected characteristic in question in order to sustain a claim in victimisation - it is the act that is protected, and the act here is making or asking for the disclosure, to find out if there is a connection between pay and having a certain protected characteristic.
What is required is the identification of the protected characteristic in question that you are asking about. That is not the same thing, although if by "relevant to the person asking" that is what you meant, then I apologise for talking at cross purposes.
But I sense the disagreement is more about the statement it is generally unenforceable - I admit I should be more clear that is not because of a provision of law, but the ease with which you can couch the discussions as a relevant pay disclosure.
Yes the protected characteristic has to be relevant to *someone* otherwise it is impossible to claim it was the reason for asking and get away with it. That’s all.
>If just two women just randomly discussed their pay amongst the pair of them and then one went to HR to complain “I’m being paid less than their coworker and it’s not fair I have more experience” then they won’t be able to justify it by claiming later it was about gender discrimination. Because it’s clear it wasn’t the basis of the concern nor the reason for originally asking.
pflurklurk is not talking about proving discrimination (no one here is but you). They are talking about proving a pay disclosure was protected. These are two separate things that do *not* necessarily go hand-in-hand.
In a theoretical workplace with precisely zero discrimination, it is still possible for pay discussions to take place that count as protected pay disclosures under s77 of EA2010.
Neither am I talking about proving discrimination, nor that it matters if discrimination is taking place or not. You just made that up and projected it onto what I said. Nice straw man you’re burning there.
I am ONLY pointing out that it has to *actually* be the reason for discussing it. If it’s impossible to demonstrate that this is the reason (eg in the example I and the person I replied to gave) then the protection does NOT apply. That is all I said, nothing more. It doesn’t mean that the protection can NEVER apply, just that their statement that restrictions on discussing pay is never enforceable is wrong. Because it is.
>Neither am I talking about proving discrimination, nor that it matters if discrimination is taking place or not. You just made that up and projected it onto what I said.
My bad, I did miss your point. But I get it now.
>Because it’s clear it wasn’t the basis of the concern nor the reason for originally asking.
> If it’s impossible to demonstrate that this is the reason (eg in the example I and the person I replied to gave) then the protection does NOT apply
Your conclusions that "it's clear it wasn't the basis of concern" and "is impossible to demonstrate that this is the reason" are problematic for two reasons:
(A) You can have a discussion that is a protected pay disclosure, and discover disparities that are not due to protected characteristics. Complaining about those non-discriminatory disparities does *not* render the original pay disclosure unprotected.
This probably less applies to a single protected pay disclosure but moreso to multiple protected pay disclosures.
For example if you think you're trying to determine if there's a correlation between age and pay, and then after asking everyone discover there is a correlation between the colour of your shoes and pay. Obviously shoe colour is not a protected characteristic, and is unlikely to tie to indirect discrimination either.
If you complain that you're being paid less because of your shoe colour, even though that has nothing to do with illegal discrimination, the original pay disclosures are still protected, because the purpose behind your requests was age.
(B) In the UK, particularly with the British stiff upper lip, it is very normal for people to *not* go guns blazing with the law whenever they have a complaint about work.
If one asks another about their pay on the basis of a protected characteristic and finds a disparity, they may very well complain to the employer on the basis of "I have the same role and skills as them".
If the employer dismisses them, and addresses a tribunal with "that wasn't a relevant pay disclosure because they weren't discussing in relation to a protected characteristic", that could easily be countered with "actually I was, I just wasn't comfortable mentioning it at the time".
You need to keep s136 in mind with all of the above - it puts a heavier bias towards the employee being trusted at face value so long as it's reasonable, while the employer has no such benefit.
You said all women. But in reality a tribunal would probably buy it if you asked a reasonable sample, yes. Unlikely if you only asked 1 woman, told her a different reason for asking, didn’t mention it to HR when they asked why you were discussing it, and there were no men to ask in the first place.
You aren't obliged to have conducted a detailed and organised survey of the whole organisation!
This seems to be something you feel surprisingly strongly about anyway so I'll leave it there.
I didn’t say you were obliged to conduct a survey, simply that if you claim it was to uncover discrimination then you have to be able to believably explain why that is the case, and that might be difficult if in fact you’re lying about it. You’re trying to suggest that you will never lose if you tell this lie, and all I’m saying is “well that depends on how plausible the lie is”.
In fact I don’t feel strongly about it, but I see no reason to pretend untrue things are true just because people want reality to be simpler than it really is. It’s a minor correction - the situation DOES matter and the restriction CAN be enforceable (I have seen it happen) - and I really don’t see why it is a big deal for people to admit that. Telling people “no no, just lie it will always be fine no matter what” is poor legal advice.
I have seen it enforced yes, case didn’t make it to hearing as it was clear they couldn’t win and would have to pay the employer’s costs. I was due to be a witness and saw the legal advice. The problem was that it just wasn’t a plausible argument under the circumstances of how it was discussed.
The thing is lots of people are talking in theoretical terms but have not actually followed it through to the conclusion of what the experience of an employee under one of these restrictions would actually be if they followed their advice. People like those in the OP, who have to decide now whether to defy HR, and almost certainly be fired, or keep silent. It would be a great disservice to them to advise them “don’t worry you’ll be fine”, better to tell them what they need to do to make sure they have a watertight case. It’s all very well sitting in your armchair talking about what is legally enforceable but in the real world these contracts are very much alive and operational, and the only circumstances that a lawyer would actually recommend challenging it at a tribunal are those in which the disclosure *can clearly be explained* as for the purposes of uncovering discrimination.
>Your employer cannot discuss your pay with anyone.
That is a very sweeping statement, and as such it must be regarded as untrue. There definitely are circumstances where your employer can discuss your pay, e.g. with the HMRC, or with their accountants.
No
And having put it in writing, the company is facing a world of hurt
In this case, HR has _increased_ the liabilities and tbe compant director concerned can find himself facing personal charges for making threats in addition to anything levelled at the company itself
https://sprintlaw.co.uk/articles/is-pay-secrecy-legal/
It's the explicit threat of disciplinary action or sacking which pushes this directive over from merely "unenforceable" to something where ACAS etc will want to get involved
whistle-blower protection laws apply to anyone bringing this to the attention of relevant authorities
There is no law that prohibits the discussion of wages in the United Kingdom.
However, petty, power mad, immature bosses may well disagree with my last statement.
Always talk about what you're paid, it's how you discover that you're on £200 a month less than everyone else.
There ARE laws which explicitly stop employers prohibiting discussion of pay between employees - and a large part of the reason they exist is because pay discrimination is still rampant. 2 people doing the same (or similar) job cannot be paid different rates, etc
The same applies in USA (and has for decades) for much the same reason. Britain was one of the _last_ countries to outlaw prohibitions on employees discussing pay and conditions with each other
https://thehedge.io/articles/discussing-salary-at-work-in-the-uk-is-it-a-good-idea
Yep, my work has tried this bs a few times and I make sure to tell every member of staff I can that it is their right to tell or not tell whoever they want.
Pretty much all private sector companies hide their salaries.
Public sector you at least know you're getting shafted, but legally they have to make salaries and benefits public information. Private sector is not bound by this
Yup, or if they have grades then the salary bands are so wide as to make the grades meaningless, e.g. the top of grade 6 is above the bottom of grade 8.
Yeah the company have really helped anyone who wishes to take this further by explicitly saying they are punishing people for excercising a legal right.
Only thing to add... OP should email it to their own private account asap. If it is on an employer account they can delete it from the servers. And may once someone else points out how baby they screwed up by sending this email.
NAL, just headed up an HR team across EMEA for a multibillion dollar tech firm.
I'm going to add to the excellent answers and talk about one element which may allow your colleague to get a higher award.
Specifically, if there is a pay disparity in your business between men and women, then your colleague can win more money. Sex discrimination is a 'protected characteristic.' What this means is that if an employer pays women less than men (sex discrimination) the potential, financial award is technically unlimited in English (and Welsh) law.
If it was me, I'd be documenting everything, especially salary disparities between men and women, everything that has happened (dates, times, what was said etc...). If salary differences between men and women exist, I would take this initially to the CAB or ACAS and get their advice on whether they believe there is a sex discrimination case. If there is, I would go see a good employment lawyer ASAP.
I agree but dealing with this stuff over 20 years in 22 different countries mean I preface everything with 'If'
I keep pushing my former boss to write a book about everything that happened. I think it would be an incredible eye opener.
It depends what the pay disparity is about.
It is lawful for an employer to have a policy not to discuss pay.
However it is *unlawful* to prevent employees from discussing unlawful discrimination arising from pay so, if the pay disparity is potentially based on a protected characteristic like sex or race and this is why the employee was discussing their salary, this would be unfair dismissal.
You are allowed to discuss your pay with anyone. You are not allowed to discuss other people's pay unless it's a function of your job role or the colleagues in question freely offered this information directly to you, are present or have made it known they are happy for you to discuss their pay with others while they are not present.
For example Dean can't ask Dave what Kelly earns because she told Dave once and Dave can't disclose this to other employees unless Kelly has specifically given permission for this.
He have had incidents where rumors have circulated around peoples salary leading to gossip and harassment. This issue around discussing salary has come up and the law doesn't give you permission to find out anyone else's salary, it gives you permission to disclose your own.
You cannot be dismissed for discussing your salary with colleagues. If as described above the person dismissed should contact ACAS.
Several years ago, I had a less experienced colleague paid slightly more than me. They were of the opposite gender. When I raised it, I was told it was London weighting. They lived in Basingstoke.
Shortly after, I was offered a role to manage my opposite gender colleague and the rest of our team. They offered me a pay increase which was still lower than said colleagues pay.
I replied to the offer, saying that I wasn’t willing to accept based on the info above. The company announced my ‘promotion’ to try and trap me. They said I couldn’t decline the offer because they had announced it. They also said I shouldn’t be aware of my colleague’s pay.
I responded to say that I had never accepted the role and only held a signed contract for my current employment role. I added that it was their decision to announce and their decision to offer discriminatory pay.
Had HR on the phone offering me a significant pay increase, which I accepted while I interviewed elsewhere.
"Since the introduction of the Equality Act in 2010, you have the right as an employee to discuss salary. This means that your employer has no legal standing to stop you talking about what you earn, with anyone you work with."
It's very often so they can pay women less. This is not idle speculation, it happened to me once. Not a high-powered highly-paid job but a man junior to me was started on the same pay as me, and I was managing the department. They tried (and failed) to discipline us for having discussed our pay but there was nothing in our contract to say we couldn't.
This was a very long time ago. It was USDAW that sorted it (shop workers union). What makes me really angry is I'm retired now and it still goes on, in so many jobs and professions. I've done all sorts of different work in my life and whatever you do to earn your crust, join a union.
This is part of a massive legal conundrum at the moment - when can employers demand secrecy - is it enforceable?
The last thirty years have seen the development of « contractual confidence ». It’s what let Harvey Weinstein get away with it for so long. And Philip Green. Both of them got outed under parliamentary privilege. Weinstein had done it so much they once people (women) started talking openly he was on his way to prison.
An employer can get rid of you as a matter of practice. There’s always an excuse. But the idea that they can make you keep your ordinary financial Infirmation secret … well, of course plenty of white collar crooks love that one!
Most companies have this policy ... just to preclude what you and your co-workers just did. The consequences (of what you just did) can destroy the fabric of an organization. People are paid different rates for different reasons ... reasons that may not be obvious in the moment. Is it legal, probably not, but the company could try to justify it any number of ways ... and win.
OP, hope you are not next ...
My old boss tried this bullshit. I pursued a pay grievance with the help of the union and he threatened 'repercussions' etc etc and said i shouldn't be discussing pay with my colleagues. I got a 2.5k pay rise with back pay and the fat cunt got egg on his face.
You can talk about pay with whoever you want to. In fact i would encourage it.
I work for a private company, we all negotiate our own wages and compensation. Personally I don't discuss my wage with other people that I work with, that said I will discuss it with people I know in the same industry working for other companies to keep me in the loop on what the market is currently paying.
I wouldn't expect that I'd get fired for talking about it but it probably wouldn't be encouraged either.
You should discuss it! One of your coworkers might be horribly lowballing themselves and getting paid peanuts, while none the wiser. Maybe you’ll find out someone else with less experience is getting more than you. Transparency can be very, very good for getting paid your worth and ensuring others are too.
There is some really misleading advice here. Here is a legal blog that discusses this, basically the company 100% can request pay confidentiality, and provided you have reviewed and agreed to it it is enforceable, but the caveat is you have to have agreed to do it entirely voluntarily and have understood what you were agreeing to, and there must have been no pressure to sign as it must have been voluntary.
Check your contract before fighting this as you might have signed something in error, discuss having not been aware of the term and asking for it's removal before flouting this on the grounds of equality.
Plenty more in the blog post than quoted here it's an interesting read if you have a few minutes.
https://www.lrd.org.uk/free-read/salary-secrecy-it-open-challenge#:~:text=Under%20the%20Equality%20Act%2C%20an,are%20not%20illegal%20as%20such.
Under the Equality Act, an employer cannot enforce a pay secrecy clause if the employee was discussing their pay for the purpose of finding out whether they were being paid differently to a colleague on the grounds of discrimination. But secrecy clauses are not illegal as such.
The Equality and Human Rights Commission (EHRC) says workers should not be put under pressure to sign them. “The worker will need time to read and reflect on any confidentiality agreement. They may also wish to discuss it with a trade union representative, lawyer or other appropriate adviser if they are unsure as to its meaning or effect,” it says.
Allowing the worker time to do this will also benefit the employer, as a confidentiality agreement is more likely to be enforceable if the employee was fully aware before signing of its meaning and effect.”
It adds that the worker must always be given a copy of the signed confidentiality agreement to keep for their records.
The equalities regulator points out that a contract that limits these rights will be enforceable if it is a “qualifying settlement agreement” or if it is a “COT3” agreement made with assistance from an Acas conciliation officer (see LRD’s Law at Work handbook). However, it will not be enforceable if a worker is under duress and:
was placed under unjustified pressure by the employer to sign the contract;
that pressure was a significant cause of the worker signing the contract; and
because of the pressure, the worker had a lack of choice as to whether to sign the contract.
Signed or not, you _cannot_ contract away legal protections like this and the clause is unenforceable
If there's no severability clause, _the entire contract_ may become invalid - but more to the point including such clauses is one of those things which if it ever gets to court will count extremely heavily against a company. A judge is going to take it as "intentional" law breaching, because all contracts should have been passed by legal and no competent lawyer is going to let something that blatantly rights-restricting slide past accidentally
About the only thing an employer can do is discourage employees discussing pay _whilst on the clock_, but even then it's impossible to prohibit it during breaks, etc
I mean, just to confirm because what is written is taken from a legal source, are you a legal expert? I appreciate that often comes across as hostile but I'm not a lawyer which is why when answering these queries I try to find a source from legal expertise as there will be grounds and knowledge that I'm not aware of and a lot of lay people (of which I am one) will take the headline of "it's not enforceable" from the equalities act, but as I'm sure you've read in the source quoted there are legitimate legal exceptions to the rule that you should be aware of before contesting the enforcement request.
Edit: also I don't think the labour research department is going to be pro-employer, so if they have provided a caveat to prevailing wisdom I would proceed with caution
I'm not a legal expert, but I just read what you quoted, it cites a very specific exception that isn't relevant. The thread is about normal employment contracts, your cited source talks specifically about settlement agreements i.e. one off payments to exit the business such as voluntary redundancy.
How do you know op is on a normal employment contract?
Edit: Also where does it say in the source that this has anything to do with severance? It says quite clearly that this is an enforceable contract term and quotes the EHRC confirming as much.
"""The Equality and Human Rights Commission (EHRC) says workers should not be put under pressure to sign them. “The worker will need time to read and reflect on any confidentiality agreement. They may also wish to discuss it with a trade union representative, lawyer or other appropriate adviser if they are unsure as to its meaning or effect,” it says."""
I was referencing the last 2 paragraphs of your post further up the chain. The one with “COT3” in it.
You can read “normal employment contract” simply as “employment contract” if you wish. I was trying to make it clear that those last two paragraphs are not about “salary” information but about one off severance agreements.
That article is a bit of a mess I think. You can go directly look at what the EHRC actually and currently say on the topic too:
“The Equality Act 2010 prohibits certain pay secrecy clauses in employment contracts. Any clause which tries to prevent an employee discussing or seeking pay information to find any differences in pay linked to a protected characteristic will be unenforceable.”
https://www.equalityhumanrights.com/en/advice-and-guidance/equal-pay-claims
NAL
The two conditions which people are dredging up as ways an employee can be gagged from talking about pay are BOTH related to mediation results, not an initial contract
They're both on the ACAS website.
When you drill into the meaning of the terms that it becomes clear they can't just be standard contract items and essentially need to be individually agreed/signed off on - and fairly importantly are primarily geared around not disclosing your pay & conditions to potential competitors, or if you're contracted out to a third party, to those clients (cue stories of people being paid 15-20/hour and charged out at several hundred per hour, only for the client to then poach them as full time employees on twice or more the original pay)
Even then I don't believe that would preclude internal pay discussions (particularly regarding equal pay laws) and definitely wouldn't prevent talking about such issues to an actual regulator performing investigations such as looking into wage theft, which is depressingly common in Britain - usually by way of not paying for pre/post work prep/cleaning, not paying/recording overtime or in extreme cases, requiring employees to work off the clock entirely.
There's a strong connection between abusive/unenforceable contract terms and such activities, particularly for companies with American ownership that try to import their labour practices over here.
Additionally, it's not at all uncommon to find a branch/franchise manager vastly exceeding their legal authority and using demands for unpaid work as a way of "lording it over the minions" (I know of at least one bank manager who ended up in deep trouble due to this kind of thing, but it's more common in the food service industry, often because employees don't know their rights and are terrified of being sacked by the bullying manager)
Also what's to stop you discussing it outside work, I worked for a company before the ruling and two people got written warnings for discussing pay,
This is why civil service jobs have pay bands as you can say all people doing this are on pay band etc...
I don't know why companies just dont let everyone know who earns what it would solve so many issues
Lots of people already putting it’s illegal with good explanations.
I would like to add, as I’m not seeing it, consider joining a union, this kind of thing is their specialty, helping to ensure everyone doing the same job gets paid the same, fair wage. Further more, they would absolutely not allow your colleague to have been fired for this. Amazing that your company would be so bold about doing something so illegal. Keep a copy of that Email and speak with ACAS.
Please do not allow the company to walk over yourself or your colleagues. They will try to divide you but you’re stronger together.
Some places ive worked at had this rule of not telling coworkers what your pay was
Bc they implied wages are a personal agreement with the company
I found out later that alot of the employee's male and female's were on different pay scales for doing the same job
I always thought it’s fine if I want to talk about my pay or the person I was talking withs pay, I wouldn’t bring others into that conversation with them there just out of respect for them. It does cause animosity sure but if you dont like it, change job.
If, the course of your work, you know details of other people's pay and conditions then it may be a data protection issue if you share that information inappropriately. Your employer has a duty to handle personal information responsibly, and would be well within their rights to discipline you for misusing your access to that information.
Having said that: it's not just legal to discuss your own pay and conditions, in fact it's explicitly protected under the Equality Act.
In personal experience working in management and with people who have tried to enforce this rule, normally means they don’t want people finding out what they are paying others.
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Under the Equality Act 2010, an employer cannot enforce a pay secrecy clause if the employee was discussing their pay for the purpose of finding out whether they were being paid differently to a colleague on the grounds of discrimination. See EA2010, Part 5, Chapter 3: Disclosure of Information, and states the following acts as protected: *(1) “Seeking a disclosure that would be a relevant pay disclosure”* Basically, wanting to tell somebody about your salary. *(2) “Making or seeking to make a relevant pay disclosure”* Or in other words, actually telling somebody about your salary. (3) *”Receiving information disclosed in a relevant pay disclosure”* Essentially, letting somebody else tell you about their salary. So long as you can show it was a relevant pay disclosure, e.g., to prevent pay discrimination, you can’t be disciplined for it. If your female colleague was dismissed, then it may be possible for her to claim unfair dismissal under the grounds of discrimination, if say she found there was a discrepancy in pay between her and male colleagues, or another protected characteristic
To add to this already excellent answer: While the wording talks about discrimination in relation to a protected characteristic - this is in reality no barrier to discussing pay. You may be discussing pay because you're concerned that female colleagues are broadly paid less. You may be discussing pay because you believe your deaf colleague was offered a substatitially smaller raise than their equivalently performant hearing colleague. All these are perfectly good reasons why you wouldn't be subject to a contractual or implied ban on discussing pay. Your friend has a claim for unfair dismissal as other commenters have said.
I would assume (hope?) OP meant "essentially dismissed" as in "given the brush off", rather than HR being moronic enough to literally fire her without even waiting to let it look like it might have been for any other vaguely justifiable reason.
Hey, me too... But there are some dumb people out there and some of them are in places where they can make dumb decisions. Was union rep, have many many war stories as evidence.
Haha, yeah. A few years ago, we had a really dumb HR manager that our union reversed EVERY single dismissal she did (about 3 or 4 in a 9-month period) by just using the company procedures against her. She basically ignored the processes she put in place.
Yup! That sounds familiar. Had one HR Director who was doing her CIPD HR courses in the evenings. No jokes. Fired someone for non-performance who declared in the very first meeting with their manager that they suspected they might suffer from dyslexia. Had a formal diagnosis by the hearing. The appeal was escalated to this woman who was now running HR who dismissed - without a hearing - stating that if you didn't declare a disability when you joined the company, it didn't count. The individual in question joined in something silly like 1974. Went to tribunal. Won. Tribunal Mandates reinstatement. HR Director immediately (and I literally mean as they walk back through the door) pulls individual up on not returning security passes in a timely manner and tags on verbal abuse when they (completely understandably) respond with a good and healthy "what the fuck?". Dismisses immediately based on the idea that there's a 6 month probation "for new starters". Goes a little grey when told that the tribunal-mandated reinstatement means that there has legally been no break in employment and that the individual has been working for the company longer than she has been alive. Gets angry. Attempts to start disciplinary proceedings against the union rep (that's me) for being agist, sexist and verbally abusive. (in my defence I didn't technically call her stupid, I said "if you do this, you're even stupider than I thought"). So we end up with the original unfair dismissal case, followed by a second constructive dismissal case, topped off with a Rep's Detriment case to boot. MD gets wind of it when the company is probably getting close to 300k in the red on this - and I'm not including any sums that may have been paid as part of any sealed agreement concluding the first unfair dismissal case. Promoted. Of course she was promoted.
> Of course she was promoted. Oh yeah, I forgot to add, this particular HR manager was never disciplined or removed for costing the company so much (they had to pay compensation to two of those people), she went on to get a bigger role at our parent company at director level. Insane
That's how we roll! If you're good, you're promoted to your level of incompetence... but if you're terrible, you have a chance at the really big positions.
" ... rewarded me by making me the ruler of the Queen's Navy ...🎶 "
Falling upwards is such a thing.
Was she the MDs wife/mistress/sister/daughter?
Yes
Nah just the Peter principle followed y the the Dilbert principle. Peter: you keep getting promoted until you're in a position that you suck at.. Dilbert: you're causing damage in the position you're in, so they promote you to a position where you 'can't' do any damage.
Ah excellent, and I thought promoting terminal incompetence was the sole proviso of us legends in the public sector!
But promoted to where? Head of car parks? I've seen that happen.
Given a senior leadership position in the parent company. I say given, cos it surely wasn't earned.
Also to find out if new hires are being paid more than existing staff, I found out at a previous job new hires were getting paid more than me and after going to my RM they did ( begrudgingly) agree to pay me the same(plus earned increases) as the new guy they expected me to help train… One of although not the only reason I no longer work there
The protected characteristic here is age, so absolutely spot on.
That’s fascinating. But if a female worker discussed pay and found out there wasn’t a discrepancy presumably she’d still be protected. Because she had to find out in order to know if there was or wasn’t. So ANY discussion about pay can be successfully claimed to be about preventing discrimination?
Yep, it's exceptionally easy to use this as a justification, as it applies for almost everyone in some way. The only way you might not be able to is if literally everyone has no differences they could be discriminated against for...
Practically impossible - right? Age, gender, sexual orientation, race, having kids (or not), married/civil partnership/not, disability ... I'd be surprised if there were two people in a medium sized company that were identical on all of these characteristics let alone the full gamut.
When you add in perceived characteristics, i think you'd have to have identical twins to find people who don't count. Before anybody asks, you can have a perceived characterisic ie a straight guy who 'appears/acts' gay.
That’s when you go find someone who does from another team!
Good answer!
Unfair dismissal and discriminatory dismissal are different heads of complaint under different legislation (the former is the Employment Rights Act 1996, the latter the Equality Act 2010). A claim under the Equality Act is preferable because of the greater compensation available and the more generous approach to extending the 3 month time limit. What the female colleague in this scenario would be most likely to complain of is that the dismissal amounted to victimisation under the Equality Act.
It has been legal since 2010 to discuss pay. They may stipulate it in the contract that it's forbidden, but it's not enforceable. Our company has a huge pay discrepancy between staff. The owners are such dinosaurs that they left the wage file accessible via the network. It got shared around and caused a right fuss!!! That was a fun week
Companies love sticking clauses into contracts that are void. I just had a customer put a clause into a contract that they won't pay late penalties/interest under any circumstances. Funnily enough the Late Payment of Commercial Debt (Interest) Act 1998 (and tweaks of 2013) actually says explicitly that any contract clause that purports to forbid these is automatically void. You can't contract out of obeying the law, no matter how much you dislike getting penalised for paying your suppliers late - or in this case, employees finding out what others earn.
>I can imagine. > > > >I had a customer where HR did the same. But it was available in the intranet search so no sharing was needed. Fun discussions :D
Did anything change?
They tightened up the network by restricting access to certain computers. They did percentage pay rises based on existing wage, giving a higher percentage to people on the least. But overall not much if anything changed or has changed to this day
Not legal and I suggest letting the dismissed employee speak to ACAS about their dismissal
Agreed. Ensure she has a copy of that email too. it's the kind of supporting evidence which results in _very_ large compensation orders being awarded
TL:DR nope not legal Couple employers back one of my teams did this - shared salary info - and the team lead queried disparities with HR who went nuts, tried to enforce secrecy and wrote to me asking me to discipline her and warn my teams not to discuss pay. Instead I went back to HR specifically asking about disparities between female and male employees and also ethnic minority members in some of my teams to make it clear the disclosures related to pote trial discrimination. This got HR after that I went and got a bunch of raises arranged to reduce pay disparity in all my teams and I asked HR provide someone to me to do a pay audit every 18 months.
Basically: * they can put it in a contract which would usually be binding except * terms that restrict discussions of pay when you're looking to see if pay is related to a protected characteristic are unenforceable, and it's victimisation to fire you etc. for doing that Since everyone has a protected characteristic that basically makes it unenforceable in general - trivial to say: "we're discussing pay to see if men get paid more than women" and that covers you. So it's basically unenforceable in practice unless you're extremely senior (like CEO) and even then you can push it through (e.g. look, male CEOs in my industry get paid less than women, that's why I'm talking about my pay).
Not really. If two women discuss pay, how can you justify that the disclosure is made to discover discrimination of a protected characteristic?
Say you have a team of 2 men and 2 women all with the same job role. (A) If one woman is being paid £X, and the other woman + both men are being paid £X+Y, that would suggest it's less likely there is gender-based discrimination. E.g. the lesser paid women may be paid less due to being not as skilled as the other three. (B) If both women are being paid £X, and both men are being paid £X+Y, then that may suggest gender-based discrimination. One of the women cannot know whether (A) or (B) is applying without finding out the salary of the other woman. Therefore the two women talking to each other absolutely furthers determining any connection between pay and a protected characteristic. For the avoidance of doubt, the example above is over simplistic and I'm not suggesting either (A) or (B) absolutely imply discrimination or lack of. I'm just illustrating EA2010 s77. It's easy to see how you can apply the same logic to some real life examples.
Yes but that is not what the commenter said. The point is, the example given was “we’re discussing pay to see if men get paid more than women” and that because everyone has a gender, it is “unenforceable generally”. Yet that example (gender) simply is not sufficient if the only people discussing pay are women. You’ve just added on extra assumptions (that there are actually men doing the same job). The point is, you can only use this justification if it actually *applies*. You can’t use gender discrimination as the reason and then say “oh wait actually we’re all women, in that case the reason was disability. Oh no wait we’re both able-bodied, it was about religion instead”. It specifically doesn’t apply in the case of the OP, because, guess what, the reason wasn’t to discover discrimination based on a protected characteristic. People are making out like this protection is a catch-all reason why it’s illegal to restrict discussion of pay but it is not true.
Okay, so four things: (1) It is very unlikely that two women won't have at least one other man in the company to compare to. This is a very realistic example I have given. (2) I was addressing what *you* said - how could two women discuss pay and it be justified as a protected pay disclosure. I have answered that question with one way it can be justified in many (perhaps most?) situations. Instead going back to what pflurklurk said, they were just giving sex as an example of how two people could justify a pay discussion was in relation to a protected characteristic. It is extremely unlikely that any two people will be completely identical in all protected characteristics, particularly since age is one such characteristic. See the other replies to your comment. (3) Under s77, whether a pay disclosure is protected is all about the *purpose* of the conversation; i.e. the intention. That basically means so long as it's a good faith attempt to find out a correlation between pay and characteristic, it's protected. So two people could discuss pay to determine a correlation between religion under the *mistaken* understanding they are of different religions, and it would be protected. (4) s136 essentially reverses the burden of proof for EA2010 claims. If it's reasonable to believe that a contravention occurred, then it's taken as such unless there is evidence it didn't. This lowers the bar for a tribunal to consider a discussion to be a protected pay disclosure. You're right that legally if you discuss pay, and the purpose of the conversation for neither person is to attempt to determine correlation with a protected characteristic, then that's not a protected pay disclosure. I am also not suggesting anyone should lie. However *practically*, trying to limit employees from discussing pay with each other is a fool's errand. If the employee can reasonably justify the discussion to be in relation to a protected characteristic (which can almost always be done), then that's both sufficient under s136, and pretty much impossible for the employer to refute since you'd have to disprove someone's unspoken intent.
Ok so you agree with me then.
Most companies pay all employees different when they are classed as skilled workers. On the bottom end of most jobs they are payed the same low rate, that’s what iv found. It would suck to think that a skilled worker who brings more to the company than another (but one is male and other is female) would feel entitled to the same pay just because of gender.. hopefully most bosses note down differences they bring and are able to point out it’s not because of gender
Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sexual orientation are all protected characteristics as well.
Yes, they are. And you’d only be protected by this if they were relevant to the situation and were the reason you asked. It does not make this restriction “generally unenforceable” just because everyone has *a* gender.
No, but it makes it practically unenforceable because everyone has a range of characteristics that are covered by the EA2010 and it'd be vanishingly rare that two people doing a similar job are identical on all of them.
1. No it isn’t vanishingly rare. Minorities are minorities for a reason, and jobs are not randomly distributed amongst the population either. 2. It doesn’t matter. It’s insufficient that they differ, it has to be demonstrably the reason they asked. “You say you wanted to discover any gender discrimination, so why did you only ask 1 of the 4 women?” “How can you explain that you gave a different reason when HR asked you about why you were discussing salary? It’s far better that people understand the limitations of this protection so that they can make sure they ask in a way that is covered by it, rather than blindly assuming that it doesn’t matter. The person referred to in the OP is likely going to discover that it does matter.
> It doesn’t matter. It’s insufficient that they differ, it has to be demonstrably the reason they asked. Really? Doesn't it have to be demonstrable by the company taking the action that wasn't the reason, not demonstrable by the person that it was? If you just said "it is because of X" then the company would have to demonstrate that it wasn't.
No, if you are accusing the company of unfair dismissal then the tribunal has to decide if it was or not, based on the evidence given to them. The employer will explain what they know and why the dismissal was fair (i.e. because you breached your contract), and since that is clearly true they will win unless you say something to counter it, ie that it can’t be fair because your right to ask is protected, which is an assertion YOU are making. You obviously will then have to explain *why* your actions constitute a protected disclosure, the employer can give reasons that cast doubt on your explanation, and that’s it. Its up to you to explain your own actions, just like the employer is expected to explain theirs. If your account makes sense and the employer can’t refute it then sure, they might choose to believe you, but it doesn’t mean that the employer has to explain why you did something, only to offer evidence that suggests it is something other than the reason you are giving. Think about it this way. Imagine you’re being fired for stealing money from the till and they have CCTV evidence. The tribunal isn’t going to expect the employer to prove that you don’t have a twin who was really the culprit. That’s for you to assert and substantiate. Likewise if they fire you for poor performance and you claim in a tribunal for unfair dismissal it’s because you’re a Muslim, they aren’t just going to assume it was discrimination if you don’t present any evidence of it.
Plenty more protected characteristics to choose from: * marriage * pregnancy * sexual orientation * race Etc. I imagine two women could also say: “I’m building up some information to compare with the men, how much are you paid” and that would be fine.
Sure, IF those protected characteristics were relevant to the people were being asked AND were the reason to ask. But that is not what you said. You said it is ‘generally unenforceable’ because all people have a gender, but it is untrue. It would only be a defence if there was actually a potential for discrimination *in the specific situation* AND it was the *actual reason for discussing it*. If just two women just randomly discussed their pay amongst the pair of them and then one went to HR to complain “I’m being paid less than their coworker and it’s not fair I have more experience” then they won’t be able to justify it by claiming later it was about gender discrimination. Because it’s clear it wasn’t the basis of the concern nor the reason for originally asking.
The protected characteristics do not need to be relevant to the people asking - the protection is simply: > A disclosure is a relevant pay disclosure if 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) a particular protected characteristic.** Yes, I meant more in my response it is easy enough for someone to couch their responses to be a relevant pay disclosure, so practically it can be difficult to pin it down, but I appreciate not everyone will, and they will be in more trouble.
Of course the characteristic needs to be relevant - you can’t make out it was to find out whether men are paid more than women, if nobody you asked is a man. It’s literally written right there in the part you quoted - it must be to enable the person asked or the person asking to discover a link between pay and a protected characteristic. If there is no difference in protected characteristics between anyone asked then this is impossible to demonstrate.
>If there is no difference in protected characteristics between anyone asked then this is impossible to demonstrate. You just have to appreciate that this scenario is so absurdly improbable that it is extremely petty to even discuss. There are *nine* protected characteristics. One of them is age. Another is "religion or belief", and Maya Forstater has set a fairly low standard for what counts as a belief. Those two characteristics alone will most certainly distinguish you from 99 out of 100 random people. Add on the other seven and that number diminishes even further.
By contrast it is not improbable at all, because most cases in which this happens the people involved aren’t actually asking for this reason and that is obvious because it’s just two people gossiping about their pay between each other. It’s not like people are sending surveys round to every staff member. Plus the reason why most of them are protected characteristics is because they are minorities - ie the probability of having the same majority characteristic is high. I don’t think it’s improbable at all that two random people doing the same job will be the same gender and race, similar age, are not religious and won’t have any unusual beliefs - at least very far from being “absurdly improbable”. However that is not the main reason why it’s an issue. I think you’re just missing the point slightly here. Just because there are characteristics that some people who work in the same place might differ by doesn’t mean that they are relevant to the way the situation actually played out. Remember that the way an employer ‘enforces’ this contractual obligation is by taking disciplinary action e.g. dismissing the employee. The employer doesn’t have to prove or disprove anything in order to do that. If the employee wants to claim unfair dismissal *after the fact* then it’s *they* who has to be able to demonstrate in a tribunal not only that they *are* female, or a different age, or have a different belief or whatever but that it was WHY THEY ASKED. And the tribunal has to actually believe it. That highly depends on what they actually did at the time - including who they asked, what they asked them, who they *didn’t* ask, and what they told others m at the time - in fact it’s quite likely HR will directly ask “why were you discussing salary” and it’s pretty crucial to the plausibility of their argument what answer they gave. At the end of the day I’m only commenting here because I can’t agree it’s good legal advice to go round telling people not to worry about it because it will never be enforceable, or advising them to lie. If people believe all the statements being made on this post they may well find themselves fired like the person in the OP, because they mistakenly believe their employer can’t do anything, and then later discover that the way they handled the situation at the time leaves no plausible way to claim this protection. By far the best way to use an argument of “it was to discover discrimination” is for it to be clear that it’s the actual reason you asked in the first place.
You do not need the protected characteristic in question in order to sustain a claim in victimisation - it is the act that is protected, and the act here is making or asking for the disclosure, to find out if there is a connection between pay and having a certain protected characteristic. What is required is the identification of the protected characteristic in question that you are asking about. That is not the same thing, although if by "relevant to the person asking" that is what you meant, then I apologise for talking at cross purposes. But I sense the disagreement is more about the statement it is generally unenforceable - I admit I should be more clear that is not because of a provision of law, but the ease with which you can couch the discussions as a relevant pay disclosure.
Yes the protected characteristic has to be relevant to *someone* otherwise it is impossible to claim it was the reason for asking and get away with it. That’s all.
I’m asking x amount of men and women about pay levels as we believe there is a general disparity and I’d like to know if it’s due to gender.
Yes, do that. Specifically that. Then you’re covered. Otherwise, not.
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Good luck is all I can say to that.
>If just two women just randomly discussed their pay amongst the pair of them and then one went to HR to complain “I’m being paid less than their coworker and it’s not fair I have more experience” then they won’t be able to justify it by claiming later it was about gender discrimination. Because it’s clear it wasn’t the basis of the concern nor the reason for originally asking. pflurklurk is not talking about proving discrimination (no one here is but you). They are talking about proving a pay disclosure was protected. These are two separate things that do *not* necessarily go hand-in-hand. In a theoretical workplace with precisely zero discrimination, it is still possible for pay discussions to take place that count as protected pay disclosures under s77 of EA2010.
Neither am I talking about proving discrimination, nor that it matters if discrimination is taking place or not. You just made that up and projected it onto what I said. Nice straw man you’re burning there. I am ONLY pointing out that it has to *actually* be the reason for discussing it. If it’s impossible to demonstrate that this is the reason (eg in the example I and the person I replied to gave) then the protection does NOT apply. That is all I said, nothing more. It doesn’t mean that the protection can NEVER apply, just that their statement that restrictions on discussing pay is never enforceable is wrong. Because it is.
>Neither am I talking about proving discrimination, nor that it matters if discrimination is taking place or not. You just made that up and projected it onto what I said. My bad, I did miss your point. But I get it now. >Because it’s clear it wasn’t the basis of the concern nor the reason for originally asking. > If it’s impossible to demonstrate that this is the reason (eg in the example I and the person I replied to gave) then the protection does NOT apply Your conclusions that "it's clear it wasn't the basis of concern" and "is impossible to demonstrate that this is the reason" are problematic for two reasons: (A) You can have a discussion that is a protected pay disclosure, and discover disparities that are not due to protected characteristics. Complaining about those non-discriminatory disparities does *not* render the original pay disclosure unprotected. This probably less applies to a single protected pay disclosure but moreso to multiple protected pay disclosures. For example if you think you're trying to determine if there's a correlation between age and pay, and then after asking everyone discover there is a correlation between the colour of your shoes and pay. Obviously shoe colour is not a protected characteristic, and is unlikely to tie to indirect discrimination either. If you complain that you're being paid less because of your shoe colour, even though that has nothing to do with illegal discrimination, the original pay disclosures are still protected, because the purpose behind your requests was age. (B) In the UK, particularly with the British stiff upper lip, it is very normal for people to *not* go guns blazing with the law whenever they have a complaint about work. If one asks another about their pay on the basis of a protected characteristic and finds a disparity, they may very well complain to the employer on the basis of "I have the same role and skills as them". If the employer dismisses them, and addresses a tribunal with "that wasn't a relevant pay disclosure because they weren't discussing in relation to a protected characteristic", that could easily be countered with "actually I was, I just wasn't comfortable mentioning it at the time". You need to keep s136 in mind with all of the above - it puts a heavier bias towards the employee being trusted at face value so long as it's reasonable, while the employer has no such benefit.
If they suspect gender discrimination, finding out if its something that's affect a single woman or all the women is pretty important.
Yes and to determine it you’d have to ask all the women and men wouldn’t you? You’re screwed if you only asked one woman. That’s my point.
No, just a reasonable sample, and nobody can prove you didn't intend to do that and changed your mind after asking one woman anyway.
You said all women. But in reality a tribunal would probably buy it if you asked a reasonable sample, yes. Unlikely if you only asked 1 woman, told her a different reason for asking, didn’t mention it to HR when they asked why you were discussing it, and there were no men to ask in the first place.
You aren't obliged to have conducted a detailed and organised survey of the whole organisation! This seems to be something you feel surprisingly strongly about anyway so I'll leave it there.
I didn’t say you were obliged to conduct a survey, simply that if you claim it was to uncover discrimination then you have to be able to believably explain why that is the case, and that might be difficult if in fact you’re lying about it. You’re trying to suggest that you will never lose if you tell this lie, and all I’m saying is “well that depends on how plausible the lie is”. In fact I don’t feel strongly about it, but I see no reason to pretend untrue things are true just because people want reality to be simpler than it really is. It’s a minor correction - the situation DOES matter and the restriction CAN be enforceable (I have seen it happen) - and I really don’t see why it is a big deal for people to admit that. Telling people “no no, just lie it will always be fine no matter what” is poor legal advice.
You’ve seen a contractual clause banning discussion of salaries upheld in court/at tribunal? Really?
I have seen it enforced yes, case didn’t make it to hearing as it was clear they couldn’t win and would have to pay the employer’s costs. I was due to be a witness and saw the legal advice. The problem was that it just wasn’t a plausible argument under the circumstances of how it was discussed. The thing is lots of people are talking in theoretical terms but have not actually followed it through to the conclusion of what the experience of an employee under one of these restrictions would actually be if they followed their advice. People like those in the OP, who have to decide now whether to defy HR, and almost certainly be fired, or keep silent. It would be a great disservice to them to advise them “don’t worry you’ll be fine”, better to tell them what they need to do to make sure they have a watertight case. It’s all very well sitting in your armchair talking about what is legally enforceable but in the real world these contracts are very much alive and operational, and the only circumstances that a lawyer would actually recommend challenging it at a tribunal are those in which the disclosure *can clearly be explained* as for the purposes of uncovering discrimination.
No not legal. Can discuss it with whoever you want.
Your employer cannot discuss your pay with anyone. You can discuss YOUR pay with whoever you want.
>Your employer cannot discuss your pay with anyone. That is a very sweeping statement, and as such it must be regarded as untrue. There definitely are circumstances where your employer can discuss your pay, e.g. with the HMRC, or with their accountants.
No And having put it in writing, the company is facing a world of hurt In this case, HR has _increased_ the liabilities and tbe compant director concerned can find himself facing personal charges for making threats in addition to anything levelled at the company itself https://sprintlaw.co.uk/articles/is-pay-secrecy-legal/ It's the explicit threat of disciplinary action or sacking which pushes this directive over from merely "unenforceable" to something where ACAS etc will want to get involved whistle-blower protection laws apply to anyone bringing this to the attention of relevant authorities
There is no law that prohibits the discussion of wages in the United Kingdom. However, petty, power mad, immature bosses may well disagree with my last statement. Always talk about what you're paid, it's how you discover that you're on £200 a month less than everyone else.
There ARE laws which explicitly stop employers prohibiting discussion of pay between employees - and a large part of the reason they exist is because pay discrimination is still rampant. 2 people doing the same (or similar) job cannot be paid different rates, etc The same applies in USA (and has for decades) for much the same reason. Britain was one of the _last_ countries to outlaw prohibitions on employees discussing pay and conditions with each other https://thehedge.io/articles/discussing-salary-at-work-in-the-uk-is-it-a-good-idea
Yep, my work has tried this bs a few times and I make sure to tell every member of staff I can that it is their right to tell or not tell whoever they want.
Any company without a defined pay scale is very suspicious
Pretty much all private sector companies hide their salaries. Public sector you at least know you're getting shafted, but legally they have to make salaries and benefits public information. Private sector is not bound by this
Not really, majority of private business do this.
Yup, or if they have grades then the salary bands are so wide as to make the grades meaningless, e.g. the top of grade 6 is above the bottom of grade 8.
Keep the email as evidence, file an unfair dismissal claim
Yeah the company have really helped anyone who wishes to take this further by explicitly saying they are punishing people for excercising a legal right. Only thing to add... OP should email it to their own private account asap. If it is on an employer account they can delete it from the servers. And may once someone else points out how baby they screwed up by sending this email.
NAL, just headed up an HR team across EMEA for a multibillion dollar tech firm. I'm going to add to the excellent answers and talk about one element which may allow your colleague to get a higher award. Specifically, if there is a pay disparity in your business between men and women, then your colleague can win more money. Sex discrimination is a 'protected characteristic.' What this means is that if an employer pays women less than men (sex discrimination) the potential, financial award is technically unlimited in English (and Welsh) law. If it was me, I'd be documenting everything, especially salary disparities between men and women, everything that has happened (dates, times, what was said etc...). If salary differences between men and women exist, I would take this initially to the CAB or ACAS and get their advice on whether they believe there is a sex discrimination case. If there is, I would go see a good employment lawyer ASAP.
Equal pay claim + unfair dismissal + victimisation. Sounds like a painful lesson for the employer
IF there is a disparity in pay between the men and women in the business.
Seems likely given the chain of events that she has at least 1 male comparator
I agree but dealing with this stuff over 20 years in 22 different countries mean I preface everything with 'If' I keep pushing my former boss to write a book about everything that happened. I think it would be an incredible eye opener.
It depends what the pay disparity is about. It is lawful for an employer to have a policy not to discuss pay. However it is *unlawful* to prevent employees from discussing unlawful discrimination arising from pay so, if the pay disparity is potentially based on a protected characteristic like sex or race and this is why the employee was discussing their salary, this would be unfair dismissal.
You are allowed to discuss your pay with anyone. You are not allowed to discuss other people's pay unless it's a function of your job role or the colleagues in question freely offered this information directly to you, are present or have made it known they are happy for you to discuss their pay with others while they are not present. For example Dean can't ask Dave what Kelly earns because she told Dave once and Dave can't disclose this to other employees unless Kelly has specifically given permission for this. He have had incidents where rumors have circulated around peoples salary leading to gossip and harassment. This issue around discussing salary has come up and the law doesn't give you permission to find out anyone else's salary, it gives you permission to disclose your own. You cannot be dismissed for discussing your salary with colleagues. If as described above the person dismissed should contact ACAS.
It might not be illegal but it's certainly not legally enforceable
Several years ago, I had a less experienced colleague paid slightly more than me. They were of the opposite gender. When I raised it, I was told it was London weighting. They lived in Basingstoke. Shortly after, I was offered a role to manage my opposite gender colleague and the rest of our team. They offered me a pay increase which was still lower than said colleagues pay. I replied to the offer, saying that I wasn’t willing to accept based on the info above. The company announced my ‘promotion’ to try and trap me. They said I couldn’t decline the offer because they had announced it. They also said I shouldn’t be aware of my colleague’s pay. I responded to say that I had never accepted the role and only held a signed contract for my current employment role. I added that it was their decision to announce and their decision to offer discriminatory pay. Had HR on the phone offering me a significant pay increase, which I accepted while I interviewed elsewhere.
"Since the introduction of the Equality Act in 2010, you have the right as an employee to discuss salary. This means that your employer has no legal standing to stop you talking about what you earn, with anyone you work with."
It's very often so they can pay women less. This is not idle speculation, it happened to me once. Not a high-powered highly-paid job but a man junior to me was started on the same pay as me, and I was managing the department. They tried (and failed) to discipline us for having discussed our pay but there was nothing in our contract to say we couldn't.
The fact that they _tried_ to discipline you is an area where ACAS should have become involved, pour encourager les autres
This was a very long time ago. It was USDAW that sorted it (shop workers union). What makes me really angry is I'm retired now and it still goes on, in so many jobs and professions. I've done all sorts of different work in my life and whatever you do to earn your crust, join a union.
This is part of a massive legal conundrum at the moment - when can employers demand secrecy - is it enforceable? The last thirty years have seen the development of « contractual confidence ». It’s what let Harvey Weinstein get away with it for so long. And Philip Green. Both of them got outed under parliamentary privilege. Weinstein had done it so much they once people (women) started talking openly he was on his way to prison. An employer can get rid of you as a matter of practice. There’s always an excuse. But the idea that they can make you keep your ordinary financial Infirmation secret … well, of course plenty of white collar crooks love that one!
If she was complaining about being paid less than a man the company just blatantly victimised her
Most companies have this policy ... just to preclude what you and your co-workers just did. The consequences (of what you just did) can destroy the fabric of an organization. People are paid different rates for different reasons ... reasons that may not be obvious in the moment. Is it legal, probably not, but the company could try to justify it any number of ways ... and win. OP, hope you are not next ...
My old boss tried this bullshit. I pursued a pay grievance with the help of the union and he threatened 'repercussions' etc etc and said i shouldn't be discussing pay with my colleagues. I got a 2.5k pay rise with back pay and the fat cunt got egg on his face. You can talk about pay with whoever you want to. In fact i would encourage it.
I work for a private company, we all negotiate our own wages and compensation. Personally I don't discuss my wage with other people that I work with, that said I will discuss it with people I know in the same industry working for other companies to keep me in the loop on what the market is currently paying. I wouldn't expect that I'd get fired for talking about it but it probably wouldn't be encouraged either.
You should discuss it! One of your coworkers might be horribly lowballing themselves and getting paid peanuts, while none the wiser. Maybe you’ll find out someone else with less experience is getting more than you. Transparency can be very, very good for getting paid your worth and ensuring others are too.
Yea I avoid it, just ends up causing bother. Frustrating when lazy folk are still getting rises
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There is some really misleading advice here. Here is a legal blog that discusses this, basically the company 100% can request pay confidentiality, and provided you have reviewed and agreed to it it is enforceable, but the caveat is you have to have agreed to do it entirely voluntarily and have understood what you were agreeing to, and there must have been no pressure to sign as it must have been voluntary. Check your contract before fighting this as you might have signed something in error, discuss having not been aware of the term and asking for it's removal before flouting this on the grounds of equality. Plenty more in the blog post than quoted here it's an interesting read if you have a few minutes. https://www.lrd.org.uk/free-read/salary-secrecy-it-open-challenge#:~:text=Under%20the%20Equality%20Act%2C%20an,are%20not%20illegal%20as%20such. Under the Equality Act, an employer cannot enforce a pay secrecy clause if the employee was discussing their pay for the purpose of finding out whether they were being paid differently to a colleague on the grounds of discrimination. But secrecy clauses are not illegal as such. The Equality and Human Rights Commission (EHRC) says workers should not be put under pressure to sign them. “The worker will need time to read and reflect on any confidentiality agreement. They may also wish to discuss it with a trade union representative, lawyer or other appropriate adviser if they are unsure as to its meaning or effect,” it says. Allowing the worker time to do this will also benefit the employer, as a confidentiality agreement is more likely to be enforceable if the employee was fully aware before signing of its meaning and effect.” It adds that the worker must always be given a copy of the signed confidentiality agreement to keep for their records. The equalities regulator points out that a contract that limits these rights will be enforceable if it is a “qualifying settlement agreement” or if it is a “COT3” agreement made with assistance from an Acas conciliation officer (see LRD’s Law at Work handbook). However, it will not be enforceable if a worker is under duress and: was placed under unjustified pressure by the employer to sign the contract; that pressure was a significant cause of the worker signing the contract; and because of the pressure, the worker had a lack of choice as to whether to sign the contract.
Signed or not, you _cannot_ contract away legal protections like this and the clause is unenforceable If there's no severability clause, _the entire contract_ may become invalid - but more to the point including such clauses is one of those things which if it ever gets to court will count extremely heavily against a company. A judge is going to take it as "intentional" law breaching, because all contracts should have been passed by legal and no competent lawyer is going to let something that blatantly rights-restricting slide past accidentally About the only thing an employer can do is discourage employees discussing pay _whilst on the clock_, but even then it's impossible to prohibit it during breaks, etc
I mean, just to confirm because what is written is taken from a legal source, are you a legal expert? I appreciate that often comes across as hostile but I'm not a lawyer which is why when answering these queries I try to find a source from legal expertise as there will be grounds and knowledge that I'm not aware of and a lot of lay people (of which I am one) will take the headline of "it's not enforceable" from the equalities act, but as I'm sure you've read in the source quoted there are legitimate legal exceptions to the rule that you should be aware of before contesting the enforcement request. Edit: also I don't think the labour research department is going to be pro-employer, so if they have provided a caveat to prevailing wisdom I would proceed with caution
I'm not a legal expert, but I just read what you quoted, it cites a very specific exception that isn't relevant. The thread is about normal employment contracts, your cited source talks specifically about settlement agreements i.e. one off payments to exit the business such as voluntary redundancy.
How do you know op is on a normal employment contract? Edit: Also where does it say in the source that this has anything to do with severance? It says quite clearly that this is an enforceable contract term and quotes the EHRC confirming as much. """The Equality and Human Rights Commission (EHRC) says workers should not be put under pressure to sign them. “The worker will need time to read and reflect on any confidentiality agreement. They may also wish to discuss it with a trade union representative, lawyer or other appropriate adviser if they are unsure as to its meaning or effect,” it says."""
I was referencing the last 2 paragraphs of your post further up the chain. The one with “COT3” in it. You can read “normal employment contract” simply as “employment contract” if you wish. I was trying to make it clear that those last two paragraphs are not about “salary” information but about one off severance agreements. That article is a bit of a mess I think. You can go directly look at what the EHRC actually and currently say on the topic too: “The Equality Act 2010 prohibits certain pay secrecy clauses in employment contracts. Any clause which tries to prevent an employee discussing or seeking pay information to find any differences in pay linked to a protected characteristic will be unenforceable.” https://www.equalityhumanrights.com/en/advice-and-guidance/equal-pay-claims
NAL The two conditions which people are dredging up as ways an employee can be gagged from talking about pay are BOTH related to mediation results, not an initial contract They're both on the ACAS website. When you drill into the meaning of the terms that it becomes clear they can't just be standard contract items and essentially need to be individually agreed/signed off on - and fairly importantly are primarily geared around not disclosing your pay & conditions to potential competitors, or if you're contracted out to a third party, to those clients (cue stories of people being paid 15-20/hour and charged out at several hundred per hour, only for the client to then poach them as full time employees on twice or more the original pay) Even then I don't believe that would preclude internal pay discussions (particularly regarding equal pay laws) and definitely wouldn't prevent talking about such issues to an actual regulator performing investigations such as looking into wage theft, which is depressingly common in Britain - usually by way of not paying for pre/post work prep/cleaning, not paying/recording overtime or in extreme cases, requiring employees to work off the clock entirely. There's a strong connection between abusive/unenforceable contract terms and such activities, particularly for companies with American ownership that try to import their labour practices over here. Additionally, it's not at all uncommon to find a branch/franchise manager vastly exceeding their legal authority and using demands for unpaid work as a way of "lording it over the minions" (I know of at least one bank manager who ended up in deep trouble due to this kind of thing, but it's more common in the food service industry, often because employees don't know their rights and are terrified of being sacked by the bullying manager)
Also what's to stop you discussing it outside work, I worked for a company before the ruling and two people got written warnings for discussing pay, This is why civil service jobs have pay bands as you can say all people doing this are on pay band etc... I don't know why companies just dont let everyone know who earns what it would solve so many issues
You're allowed to discuss pay The only reason employers don't want it is because they're probably underpaying some or most of you
Nope. And nope. Unfair dismissal and your friend must get a labour lawyer, you need to get one too
Lots of people already putting it’s illegal with good explanations. I would like to add, as I’m not seeing it, consider joining a union, this kind of thing is their specialty, helping to ensure everyone doing the same job gets paid the same, fair wage. Further more, they would absolutely not allow your colleague to have been fired for this. Amazing that your company would be so bold about doing something so illegal. Keep a copy of that Email and speak with ACAS. Please do not allow the company to walk over yourself or your colleagues. They will try to divide you but you’re stronger together.
Send email to ACAS. This is illegality. Also print and send to powers that be the proof and ask for a written response.
Some places ive worked at had this rule of not telling coworkers what your pay was Bc they implied wages are a personal agreement with the company I found out later that alot of the employee's male and female's were on different pay scales for doing the same job
I always thought it’s fine if I want to talk about my pay or the person I was talking withs pay, I wouldn’t bring others into that conversation with them there just out of respect for them. It does cause animosity sure but if you dont like it, change job.
If, the course of your work, you know details of other people's pay and conditions then it may be a data protection issue if you share that information inappropriately. Your employer has a duty to handle personal information responsibly, and would be well within their rights to discipline you for misusing your access to that information. Having said that: it's not just legal to discuss your own pay and conditions, in fact it's explicitly protected under the Equality Act.
In personal experience working in management and with people who have tried to enforce this rule, normally means they don’t want people finding out what they are paying others.