Red-Circling Defence

Red-Circling has been used by employers as a defence in equal pay claims between men and woman.  

red circle defence and gender pay

Discrimination on the Gender Ground in relation to Pay  

Section 6(1) of the Equality Act states: 

Discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’) 

Section 6(2)(a) provides that as between any two persons, the discriminatory grounds are, inter alia: (a) that one is a woman and the other is a man (in this Act, referred to as ‘‘the gender ground’’), 

Entitlement to Equal Remuneration  

The Equality Act 1998 prohibits discrimination on the ground of Gender.  

There is a legal right to equal pay for men and women engaged in ‘like work’’ by the same employer.  

Section 19 of the Equality Act 1998 states:  

‘’It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer. 

In this section ‘ relevant time ’ , in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.  

What is Like Work between sexes ?

Another person shall be regarded as employed to do like work if— 

( a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work, 

( b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or 

( c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. 

Red-Circling Defence  

Subsection 5 of Section 19 of the Equality Act states:

 (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees. 

Therefore, to succeed applying this Defence, an employer will have to prove that the basis for the difference in pay relates to matters not connected with gender.  

An employer must be able to justify what would otherwise be unequal pay for like work. There should be objective justification for the difference in pay.  

Sham reasons given for differential pay to avoid a finding of discrimination will not be accepted.  

Disclaimer for this Red-Circling Article

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed.

It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.

Legal advice should be sought from a solicitor prior to relying on anything in this article.  

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article. 

Red-Circling Defence

Employment Law Articles

Roger Cleary

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