(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.
(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)).
Cases considering section 64 13
[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])
[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])
[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.
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.