Hi Olivia

If one of the two candidates is male and the other is female, and the only reason for the difference in pay is their gender (i.e. they do the same job and their skills and experience are the same), then the pay gap would be illegal. If the gap can be objectively justified through a difference in role or a significant difference in skills and experience or the two candidates are the same gender, then it wouldn't be illegal.

The way to avoid illegal pay discrimination is to have a robust and objective job evaluation and pay structure so that large differences can't be decided on the spot at the point of recruitment.

Kind regards

Jackie

Hi Jackie, I understand this when it is based on gender. But does the law cover the same gender?

In reply to Olivia:

Hi Olivia
No it doesn't as there would be no illegal gender discrimination if the two employees were the same gender. Discrimination is only illegal if the reason for it is based on a protected characteristic.
Kind regards
Jackie

Whilst the gender pay gap is a well-known phenomenon (albeit not without its challengers), protection under the Equality Act applies to all nine protected characteristics, not just gender.

So there is a risk of discriminating on the basis of race, sexual orientation, religious or philosophical belief or any other protected characteristic. If push comes to shove and the company has to justify its decision to pay one person £15k more per year for the same job as they agreed to pay another, then the onus is on the business to show that they did so on the basis of objective and lawful grounds. If the business cannot convincingly show that then the finding will invariably go against them with all that such things entail.

So awarding someone a substantially better salary simply because they negotiated for it is inherently risky.

However, there is also a cultural aspect to it that cannot be ignored. Statistically, a white man is more likely to feel confident negotiating a higher salary in the face of a panel of other white men than someone who isn't a white man. Furthermore, through well evidenced experiment, it has been shown that a panel (even one that isn't exclusively made up of white men, although even more so if it is) is more likely to concede to a higher salary for a white man than it is for someone who isn't.

Furthermore, the traditionally-accepted method of negotiating for higher pay is based upon accepted forms of exchange that are culturally associated with white men - in other words, the way we see this kind of negotiation going is based upon methods of communication that favour the methods mostly used by white men.

We're getting into fairly contentious territory here and I'm straying beyond the limits of my academic credentials, though. So I'll just say that all of this adds up to the fact that letting candidates negotiate for higher pay on the basis of nothing more than their ability to negotiate is extremely risky and generally poor practice. However, you can permit negotiation (if you really want to) by encouraging applicants (even-handedly) to provide you with an objective justification for their starting at a higher pay point that the entry point for the role.

For example, you might talk about their academic qualifications, the quality of their experience, their ability to open doors at specific clients with whom they have demonstrable positive contacts... any of these things are fine and fair reasons to consider a higher starting salary than another person who is also qualified for the role, but not as well as the person sitting in front of you.

But by the same measure, you must also therefore be open to allow others in the same role - be they new recruits or existing employees - the same fair opportunity to make arguments for their own advancement in pay.