Equality Act 2010, section 64

Relevant types of work

Part 5 Work

(1)Sections 66 to 70 apply where—

(a)a person (A) is employed on work that is equal to the work that a comparator of the opposite sex (B) does;

(b)a person (A) holding a personal or public office does work that is equal to the work that a comparator of the opposite sex (B) does.

(2)The references in subsection (1) to the work that B does are not restricted to work done contemporaneously with the work done by A.

[F70 (3)Sections 66 to 68 and 70 apply where a person (A) is or has been in pensionable service under an occupational pension scheme (regardless of whether those sections also apply in A’s case by virtue of subsection (1)).F70]

Definitions used in section 64 2

pensionable service

(11) “Employer”, “deferred member”, “pension credit member”, “pensionable service”, “pensioner member” and “trustees or managers” each have, in relation to an occupational pension scheme, the meaning given by section 124 of the Pensions Act 1995 .

Defined in s.212(11) · see it in the full Act
occupational pension scheme

“occupational pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993 ;

Defined in s.212(1) · see it in the full Act

Cases considering section 64 13

For Women Scotland Ltd v The Scottish Ministers

[2025] UKSC 16 · 16 April 2025Interprets

An equal-pay claim requires an actual comparator of the opposite biological sex. The resulting limitation for some trans claimants does not justify certificated sex. (see paras [149]-[150]; [262]-[263])

Tesco Stores Limited v K Element & Ors

[2026] EWCA Civ 580 · 12 May 2026Defines

Section 64 identifies the relevant types of work for the sex-equality regime, including work equal to a comparator’s work. (see paras [10], [122]-[123]) Section 64(1) was applied as part of the statutory framework for comparing an employee’s work with that of an opposite-sex comparator. (see paras [10], [122]) Section 64(2) removes a requirement that the comparator’s work be done contemporaneously. The court recorded this as part of the statutory scheme without deciding a separate issue on it. (see para [10])

Walker v Co-Operative Group Ltd & Anor

[2020] EWCA Civ 1075 · 14 August 2020Defines

Defines the threshold for an equal pay claim by requiring work equal to that of an opposite-sex comparator before the sex equality clause and material factor defence arise. (see paras [51]; [54]-[57])

What each judgment says about section 64 is in the case-law panel in the full Act.

Explanatory note

217.Chapter 3 of Part 5 of the Act contains provisions designed to achieve equality between men and women in pay and other terms of employment where the work of an employee and his or her comparator – a person of the opposite sex - is equal. It does so by providing for a sex equality clause to be read into the employee’s contract of employment. This is designed to ensure parity of terms between the employee and his or her comparator. A similar provision – referred to as a sex equality rule – is implied into the terms of pension schemes.

218.This section explains that the sections mentioned which impose the equality clause and equality rule apply to employees, office-holders and, by virtue of subsection (3) of section 83, members of the armed forces, where one person’s work is equal to the work of another.

219.This is a new provision that is designed to clarify to whom the equality clause and equality rule provisions of the Act apply. It should be read together with section 79. The references to comparator (and its definition in section 79) clarify, but do not widen the choice of comparator available in previous legislation for the purpose of a claim for breach of an equality clause or rule. As was the case under previous law, a comparator has to be a real person and not a hypothetical one. Section 64(2) is a new provision which is intended to ensure that the effect of pre-existing case law Macarthy's Ltd v Smith (C 129/79; [1981] 1 All ER 111; [1980] ECR 1275) is maintained: that a comparator need not be someone who is employed at the same time as the person making a claim under these provisions, but could be a predecessor in the job.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F70S. 64(3) inserted (coming into force in accordance with reg. 1(b) of the amending S.I.) by The Pensions Act 2004 and the Equality Act 2010 (Amendment) (Equal Treatment by Occupational Pension Schemes) Regulations 2023 (S.I. 2023/1308), reg. 3(2) this amendment (inserted text) is marked as yet to come into force, see the commentary.