For BAME workers, fair pay is about more than headline salary. It also concerns whether race affects access to progression, bonuses, overtime, development opportunities, and senior roles. The Equality Act 2010 protects workers from race discrimination. Race is defined broadly and includes colour, nationality, and ethnic, or national origins.
The Equality Act 2010 provides distinct routes for challenging pay inequality. Its equal pay provisions require equality between women and men doing equal work. For BAME workers, pay inequality may therefore need to be considered under the Act’s wider race discrimination provisions, because a worker does not always need a direct comparator to challenge unfair treatment linked to race.
Why this matters
Ethnicity pay gap data can reveal differences in average pay and progression between workers who are minority ethnic and those who are not. Those differences do not automatically prove unlawful discrimination, but they may indicate that an employer’s pay and promotion practices require closer scrutiny. Relevant factors can include opaque processes, unequal access to sponsorship and development opportunities, and repeated requirements for BAME staff to prove their suitability for progression.
The Equality Act 2010 prohibits direct and indirect race discrimination. Direct race discrimination occurs where someone is treated less favourably because of race. Indirect discrimination can arise where an apparently neutral provision, criterion or practice places a racial group at a particular disadvantage and cannot be objectively justified. In pay cases, this may include being passed over for higher-paid duties, denied fair access to bonuses, or restricted to lower pay bands.
How a claim can be made
The first step is to gather evidence. Keep pay slips, job descriptions, appraisal records, promotion outcomes, and written explanations about pay or grading. Raise the issue with your employer in writing and ask for a clear explanation of how the pay decision was reached.
A difference in pay between workers who are minority ethnic and those who are not does not, by itself, establish race discrimination. Pay may differ for legitimate explanations, including reasons such as the roles being materially different, experience, qualifications, performance, location, working patterns, or additional responsibilities. The relevant question is whether race materially influenced the pay decision or whether an apparently neutral pay practice placed workers of a particular race at a particular disadvantage and cannot be objectively justified. The claimant must first establish facts from which a tribunal could infer discrimination, in the absence of another explanation. The evidence therefore needs to do more than identify a pay gap: it should test the employer’s explanation and identify facts linking the difference to race or to a discriminatory practice.
If the issue is not resolved, you can bring a claim in an employment tribunal, but you must first notify ACAS and go through Early Conciliation. For race discrimination, the usual time limit is three months less one day from the discriminatory act complained of. Time limits can be complicated, so advice should be sought promptly.
If the issue concerns unequal pay between a woman and a man, the Equality Act 2010’s equal pay provisions may apply. The claimant will usually need to identify an actual or hypothetical comparator of the opposite sex who is in the same employment, or associated employment, and is doing equal work but receives better pay or contractual terms. A hypothetical comparator cannot be used for an equal pay claim. Where there is no actual comparator, the circumstances may instead need to be considered under the Act’s sex discrimination provisions, for which a hypothetical comparator may be used.
By Nav Bhogal, PDA BAME Network co-opted committee member
Get involved
- Follow the PDA BAME Network on social media using the hashtag #PDAbame
- Join the BAME Network here.
- If you would like to get involved with the network and its activities, please email: [email protected]
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