Preparing an equal pay claim: what evidence do you need?

When you prepare to make an equal pay claim at an employment tribunal, you need to prove that the company you work for is paying you less than colleagues who perform work that’s equal, of equal value, or work that’s rated equivalent.

Starting your equal pay claim

You’ve already tried to resolve your pay dispute by talking to your employer.

You’ve attended mediation – or taken ACAS up on the offer of early conciliation.

And still you’ve got nowhere.

Now, it’s time to make your equal pay claim. In preparation for your tribunal, you’ll want to find an employment solicitor. You’ll also want to make sure you have as much evidence as possible to support your case.

Gathering evidence

You’ve probably heard the term ‘burden of proof’ on TV. It means an obligation to prove an assertion. So, in all those ITV crime dramas, when the police arrest a suspected criminal (the assertion) they must show evidence to support it (the proof).

When it comes to equal pay, the burden of proof is on you – to begin with. You’ll need to prove that you’re being paid less for ‘equal work’, ‘work  of equal value’, or ‘work rated as equivalent’ compared to a colleague.

You should also be able to prove that the discrepancy in pay is due to material differences, such as your age, race, or gender (known as protected characteristics and covered by law in the Equality Act 2010).

Once this is done, the burden of proof falls on your employer. And they may have further evidence that once again shifts the burden of proof onto you.

Because of this, you’ll want to gather as much evidence as possible to show your claim is accurate and true. The more you have, the stronger your equal pay claim will be.
  • Keep your records

Make sure you keep all correspondence with your employer whether it’s letters, emails, call logs, meeting notes. If applicable, you should also consider maintaining incident records, as you would in a discrimination claim. This should include the event, dates, times, locations, and people involved, including any witnesses. Keep everything in date order.

You’ll need all this information when lodging a claim.
  • Request information from your employer

Ask your employer for information on their pay scale and structure, and how salary decisions are made. The company isn’t obliged to hand this over – only the courts or tribunal can force them to make it public – but it’s worth asking. It might help give you an insight into why you’re being paid less.

As part of this discovery process, you can also ask to see the terms and conditions of your comparator (we’ll get on to that in a moment). Use the ET1 or Equal Pay Questionnaire form.
  • Dig out your contract

It’s important for a tribunal to see your job description, so leaf through your contract to find it. You can use this when comparing your current role with a colleague.

However, any equal pay claim is based on the work you currently do, not the work you were originally contracted for – so if you’ve taken on new tasks or responsibilities, or your working conditions have altered, these should also be noted.

‘Equal pay’ doesn’t stop at your wage or salary. It also covers any company benefits, perks, and even your pension, which should also be in your contract.

All of this can make a difference when proving you’re performing equal or equivalent work.
  • Choose a comparator

Arguably the most important factor in your equal pay claim is choosing a comparator. This is the colleague against whom you compare your work and pay.

They don’t need to be in the same role as you, but should perform work that’s equal, of equal value, or work rated as equivalent. You can also choose your predecessor as a comparator, even if they no longer work for the company.

You’re free to choose more than one comparator, but be warned: the more comparators you have, the more complex your claim becomes. It’s best to focus on one or two colleagues. If no comparator exists at your work, you could instead make a direct discrimination claim. A solicitor will be able to advise.

Disproving your claims

Just because you’re being paid less than your comparator, it doesn’t automatically mean you’ll win an equal pay claim.

During the tribunal, your employer must justify their position. They need to prove that you’re not getting paid less because of your gender (or any other protected characteristic).

For example, they might point out that your comparator has much more experience than you, or they’re based in different location, which means they’re entitled to greater pay.

If your employer can’t prove this – or your evidence suggests otherwise – they’ll be found in breach of the Equality Act 2010. In other words, they’ve broken the law.

Another company defence, which has sometimes proved difficult to counter, is stating that your performance isn’t as good as your comparator’s.

Where possible, locate evidence disproving this. Proof might include documents from clients or customers, correspondence with senior staff, or even training certificates.

Lodging your claim

If you or your solicitor hasn’t informed ACAS yet of your intention to take your employer to an employment tribunal, this is your next step.

You can make an equal pay claim while still working for the company or up to six months after you’ve left the business. Your solicitor will advise you on what evidence you need to prove your claim, and how strong your case is based on the evidence you already have.

If you still need legal expertise, The Law Superstore’s quick quote form lets you compare and connect with employment solicitors ready to guide you through the tribunal process.

Steve Clark

Steve creates helpful guides for The Law Superstore. He enjoys digging deep into new areas of the law, supporting partners, and translating legalese and jargon into plain English everyone can understand.

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