Equal Pay

21 05 2009

I was watching “The Trouble with Working Women” on BBC2 last night.  The newsreader Sophie Raworth and a bloke called Justin investigated why women don’t earn as much as men in the workplace.  I don’t think it gave any precise answer as to why it occurs; it merely highlighted that the Equal Pay Act 1970 has done little, or nothing, to reduce the gender pay gap. 

According to the statistics they presented, if I heard it properly whilst burning the supper, women in the City get paid 60% less than men.  60%!  If this is correct it is incredible.  I can fully accept that a pay gap exists between the sexes and that discrimination still occurs but the amount seems amazing.  

Be that as it may, I then read in Employers’ Law*, a useful HR magazine published by Reed, that equal pay claims accounted for one-third of all Employment Tribunal claims in 2007-08, which is not surprising in the circumstances.  The article then goes on to state that 52% of those claims were withdrawn , 23% struck out following a hearing and only 7% were successful.  What about the other 17%?  Presumably those were the cases where the employer succeeded in rebutting the claim.

The number of equal pay claims has been increasing over the last few years, but increased massively last year.  In 2007/08 60,000 equal pay cases were lodged, up from 17,268 the previous year and 4,412 in 2003/04 .  This huge increase may reflect increased public awareness of the gender pay gap or it may be a factor of the recession – if you have just been placed at risk of redundancy, why not submit a claim for up to six years’ wage differential?

Equal Pay claims are difficult to prove, cost lots of money in legal fees and take a long time to bring to a final hearing.  In very basic terms there are two types of claim that a woman can bring if she thinks she is being paid less than a man; (1) a claim for like work (i.e. that a man is doing the same job as her for more money) and (2) a claim for work of equivalent value – in other words that a man doing a similar but not the same job is getting paid more.  The claimant can backclaim for up to six years.  The second type of claim is particularly difficult to bring because it requires an expert assessment of the composition of the roles in question.  My guess is that the 52% of withdrawn claims include claims which settled because both parties did not have the resources to fight all the way, or employers who did not  want the publicity of  Tribunal proceedings.   That only 7% succeeded of those Claimants  that did fight on reflects the difficulty in proving the cases and obtaining the necessary evidence. 

One of the main problems for a claimant is finding a comparator – i.e can a female Claimant point to a man doing the same work or an equivalent job for more money?  It is often easier said than done, but this may change following the Court of Appeal’s (“CA”) judgment in the case of Mid-Suffolk Mental Health Partnership NHS Trust v Hurst and others which may make it easier for Claimants to succeed.  The CA said that it would not be necessary for Claimants to name a comparator in order to succeed.  New legislation in the Equality Bill (see my earlier post on this) is likely to have a much more radical effect.  Secrecy clauses in employment contracts will be outlawed, allowing employees to discuss what they earn.  Public authorities will have to publish gender gap pay details and private companies with more than 250 employees have until 2013 before they are required to do the same.

It is to be hoped therefore that the gender pay gap will eventually be eliminated and women no longer paid less simply because of their gender.  There’s a long way to go though.

* Employers’ Law May 2009 p.10

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The new Equality Bill

28 04 2009

This is something we will be hearing a lot more about over the next few months and years.  At last the government has introduced legislation that seeks to rationalise the current miasma of anti-discrimination legislation and bring it all into one piece of legislation. 

At the moment, in the workplace environment, six types of discrimination are outlawed – age, race, sex (gender), sexual orientation, religious belief and disability.  Each piece of legislation behind each type is different in certain respects so a new Act that contains all the relevant definitions, duties and defences is to be welcomed.  Whether, in practice, the Equality Act (if it gets that far) will be is another matter.  Undoubtedly it will change as it goes through Parliament but here are the current headlines

1. The Secretary of State will be given power to order employers with more than 25o employees to publish information about male and female pay levels, with a view to thus highlighting discrepancies in pay between the sexes.  This won’t be enforced for at least the next four years though.

2. Secrecy clauses in employment contracts forbidding staff discussing their pay and bonuses (what’s a bonus?) will be outlawed.

3. Associative discrimination will be made illegal.  This means that, as in a recent case, a carer of a disabled person is dismissed because of her caring obligations, she will be able to claim disability discrimination even though she is not herself disabled. 

4.  There will be new definitions of indirect discrimination and disability discrimination.

5.  Positive discrimination at recruitment in favour of disadvanteged groups will be allowed when the candidates are otherwise equally matched.  

6. Public bodies also have duties imposed upon them to promote equality.

 

The Bill has been mooted for some time now and it will be interesting to see how much survives the scrutiny of Parliament, especially at a time when the economy is in deep recession.  Many employers, no doubt, will not relish having additional burdens placed upon them by government.