In its consultation the Government asks 'Do you agree that allowing the use of hypothetical comparators would be unlikely to give any benefit in practice?', referring to the difficulties in providing evidence of the pay or benefits that a hypothetical comparator would have received, and saying the problem would be most acute in equal value claims.

However, surely this inability for women to compare themselves with a hypothetical comparator is at the heart of the continuing gender pay gap? Although the 1983 addition of the work of equal value provision to the Act has significantly broadened the range of its protection, the provision remains of limited value to those women who work in predominantly female workplaces where a man in a job of equal value cannot be found. The Act simply does not prohibit low payment of women in the absence of a higher-paid male comparator, and one has only to look at sectors like health and social work, where, according to the 2004 Workplace Employment Relations Survey, over four-fifths of employees are female, to see the impact this has on pay.

With no scope for hypothesis about how a man in a woman's situation 'would' have been treated, perhaps the legislation in its current form has reached its limitations on eliminating pay discrepancies based on gender.