Answer by Tracey Guest

I understand that you are on maternity leave and your temporary maternity cover is being paid more than you. Under every contract of employment there is an implied duty for employers not to act capriciously or inequitably in relation to pay. This forms part of the wider implied duty for employers not to act in such a way so as to breach the implied term of trust and confidence. Whether your contract has been breached due to the temporary person being paid more will depend on a variety of factors e.g. how much more are they being paid (if it is only a small amount then it will matter less), is the higher pay due to being unable to recruit someone quickly on a lower salary (which would be a valid reason) or to reflect the fact that the job is temporary, is the temporary cover male (which may indicate sex discrimination), are they paid more because they are full time (which would indicate discrimination against part time workers) and so on.

If there are valid and fair reasons for paying the temporary cover more then this will be acceptable. At this stage, you need more information and I would therefore contact your employer asking why the temp is being paid more and asking for your pay to be increased accordingly. If they refuse, then you can look at raising a written grievance and/or submit a sex discrimination questionnaire to find out more about why they have chosen to pay you less. This will give you information to establish whether you have a claim for discrimination and also whether you can resign and claim constructive unfair dismissal.

Tracey Guest is head of employment and a partner at Slater Heelis in Manchester. She specialises in employment law and is also a working mum. Sarah Calderwood has assisted with this answer.