I will start this article with a confession – I am obsessed with TikTok.  Yes it’s probably melting my brain and stealing my data, but it’s also highly entertaining and often informative.  One of the more informative themes that pops up on my FYP is HR advice.  I don’t search this but clearly TikTok knows I am an employment lawyer (see above about stealing my data).  I recently saw a TikTok - which I unfortunately cannot find again to credit the creator – of a gentleman commenting on a HR issue where the employee had discovered that they were paid less than their colleagues, only to be met with a response from their boss to say that discussing pay was a disciplinary matter. 

It is relevant that the creator of this TikTok was American.  One of the great things about TikTok is the insight into the other cultures.  I have certainly learned a lot about American work culture (search #corporategirlies for more on this) and in particular that there are stark contrasts to the UK.  Whilst the creator of the video was critical of the boss’s response, my impression (rightly or wrongly) is that in the US, employers can implement rules preventing staff from discussing pay.

A word of warning for UK employers, the same is not true here.

Is it illegal to prevent staff from discussing pay?

In a word, yes.

More specifically, to do so would likely be a breach of the Equality Act 2010.  Part 5, Chapter 3 of the Equality Act which deals with disclosure of information prevents employers inserting contractual clauses or policies which prevent disclosure or discussion of pay.  In particular, employers cannot prevent staff from:

• seeking a disclosure that would be a relevant pay disclosure

• making or seeking to make a relevant pay disclosure

• receiving information disclosed in a relevant pay disclosure

The main aim of this relates to the gender pay gap, as preventing staff from seeking information about pay would prevent them from gaining information as to whether they are being discriminated against.

Is there nothing I can do?

In theory you could prevent pay discussions taking place during working time, but this seems draconian and probably makes it look like have something to hide.

On occasion, discussions about pay might be inappropriate.  For example, an employee harassing another to disclose their pay information might be an incident of bullying.  However in that case, it is the bullying behaviour and not the topic of pay which is inappropriate.

What can employers do?

Not a lot. You cannot control what employees discuss and younger generations in particular are keen to share these kinds of details to ensure that everyone is being treated fairly.  If you’re worried about staff discussing their pay, you might need to ask yourself what your concern really is.  If you’re paying everyone fairly and properly, with equal pay for employees carrying out work of a similar nature, what is the issue? 

Chances are if you are concerned about employees discussing pay, it is because your pay policies are unfair and unclear.  There are things you can do to correct this:

• Review your pay structures.  Pay should be based on the role and experience and many companies use a banding system with objective criteria to ensure that there is no bias in pay decisions.

• Review the market regularly. I often hear that one employee is earning more than another doing the same job because they joined at a time where the market was buoyant and was higher.  In that case, you’re not overpaying the new staff member, you’re underpaying the existing one.  Perhaps its time to review pay for the entire team and increase in line with the market.

• Be clear on your pay policies.  This often means advertising the bands internally, being clear about pay and progression at the recruitment stage, and continuing to maintain an open dialogue about pay throughout the employment.

If you have any queries about employee pay, disciplinary matters, or recruitment issues, please contact Charlotte Braham by email or on 01494 893529.