Can a woman bring an equal pay claim on the basis that a female comparator earns more than she does?

A woman cannot bring an equal pay claim under the "equality of terms" provisions of the Equality Act 2010 on the basis that a female comparator earns more than she does. Section 64 of the Equality Act 2010 requires an opposite sex comparator in order to bring a claim. Employees have the option of bringing a direct sex discrimination claim under s.13 of the Equality Act 2010 in relation to contractual pay, rather than a claim under the "equality of terms" provisions, in which case the employee would be able to compare her pay to that of a hypothetical male comparator, but this would still not allow for a claim on the basis that a female comparator earns more than she does.

A woman in such a situation may consider whether or not the employer is complying with the implied contractual term of trust and confidence if there is a noticeable discrepancy in pay where the work and all other circumstances (such as qualifications and experience) are the same. However, she would not be able to bring an equal pay claim with a same-sex comparator.