Equal pay, but not just for sex? Government consults on a major rethink of pay discrimination

Equal pay has always been slightly different from other types of discrimination under UK equality law.

The Equality Act 2010 protects employees against discrimination because of a range of characteristics, including sex, race and disability. However, the specific equal pay rules only apply to differences in pay between men and women.

Under these rules, an employee can compare their pay with someone of the opposite sex who is doing equal work. This can include the same or similar work, work rated as equivalent, or work of equal value. If there is an unlawful difference in pay, an “equality clause” can effectively change the employee’s contractual terms to remove that difference.

The employer can only defend the claim if it can show that the difference in pay is because of a genuine “material factor” which is not sex.

What about race and disability?

There is currently no equivalent equal pay system for any other protected characteristic. 

An employee who believes they are being paid less because of another protected characteristic (for example, race, sexual orientation or disability) can bring a discrimination claim. However, the legal rules and the remedies available are different.

The Government is now consulting on whether this should change, at least in respect of differences in pay referable to the protected characteristics of race and disability.

What is the Government proposing?

One of the most important proposals is to give employees experiencing race or disability pay discrimination similar rights to those bringing sex equal pay claims.

This could allow employees to compare their pay with colleagues doing the same or similar work, work rated as equivalent, or work of equal value.

Importantly, a tribunal could also have the power to change the employee’s contractual pay terms following a successful claim. This would mean that the tribunal could not only award compensation but also correct the discriminatory pay difference going forward.

That would be a major change.

What else is being considered?

There is an ongoing consultation which covers a wide range of other proposals, including:

• requiring employers to provide pay information in job adverts or before interview;
• strengthening requirements around equal pay audits and job evaluation schemes;
• bringing back statutory questionnaires for pay discrimination claims;
• creating a new Equal Pay Regulatory and Enforcement Unit with enforcement powers; and
• giving tribunals more flexibility to extend time limits in equal pay cases.

There are also proposals dealing with outsourcing and the use of hypothetical comparators in some circumstances.

The consultation closes on 27 October 2026.

For HR teams, these proposals are worth watching closely. If they become law, they could do much more than simply update the existing equal pay rules. They could significantly change how employers need to identify, explain and correct pay differences across their workforce.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.

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