1. Cardiff Business School-12 June 2008 1 The Gender Equality Duty: A lever for equal pay? Bronwyn McKenna Director of Organising and Membership

2. Cardiff Business School-12 June 2008 2 Overview  bargaining context  background to public sector equal pay litigation  use of gender equality duty to secure equal pay  case studies  legislative context

3. Cardiff Business School-12 June 2008 3 Bargaining context 1/2 Local Government  1997 Single status agreement-local pay and grading reviews  2004-2007 three year pay deal-April 2007 deadline. BUT no government funding  2008 Local Government Employers research 49% councils completed pay and grading review 25% councils in process of implementing capitalisation in England (£0.5bn) and Wales

4. Cardiff Business School-12 June 2008 4 Bargaining context 2/2 NHS  2004 Agenda for Change agreement developed with expert job evaluation advice  90% of NHS staff’s pay increased  largest increases-cleaners, domestics, health care assistants i.e. predominantly female group  government funding provided to meet costs  Agreement piloted and centrally driven

5. Cardiff Business School-12 June 2008 5 Public Sector equal pay litigation  1 in 5 of all ET claims = equal pay claims  2008 UNISON commenced its 40,000 th case  disadvantages of an individual enforcement approach random effects delay in hearings of multi-week cases incidence of appeals evidence can become matter of archaeology underlying law not fit for purpose e.g. comparator issues

6. Cardiff Business School-12 June 2008 6 Scope to use GED to secure equal pay 1/2 General duties directly enforceable by Judicial Review by trade unions and the Equality and Human Rights Commission S76(1) SDA public authority must have due regard to the need to  eliminate unlawful discrimination and harassment; and  promote equality of opportunity between men and women

7. Cardiff Business School-12 June 2008 7 Scope to use GED to secure equal pay 2/2 Specific duties directly enforceable by EHRC s76B + s76C SDA  public authorities are required to publish a gender equality scheme showing how they intend to fulfill the general and specific duties  to consider the need to have objectives that address the causes of any difference in between the pay of men and women that are related to their sex  to collect and assess information on the effect of policies and practices on male and female staff (Indirect requirement to carry out pay audits?)  to consult stakeholders including trade unions as well as employees  to assess the impact of its policies and practices on gender equality  to conduct reviews of gender equality scheme

8. Cardiff Business School-12 June 2008 8 How should unions harness the Gender Equality duties?  ensure reps are involved in the development of any Gender equality scheme from an early stage  ensure reps are formally consulted on the scheme  make sure process for gathering information is robust  determine criteria for equality impact assessments  establish union involvement in reviews of progress on equality scheme  insist on pay audits as most effective means of addressing the gender pay gaps  scope to use GED in equal pay claims? to obtain information to highlight inequalities pleadings in case

9. Cardiff Business School-12 June 2008 9 Case study-NHS PFI contract  PFI contract for soft facilities management with information extended and value of contract increased  equality scheme in place but no equality impact assessment; and no equality specifications included in contract  legacy commissions wrote to employer asking for equality scheme and EIA  commitment to carry out EIA at late stage  route of implementation of Agenda for Change speeded up  commitment to apply Agenda for Change for future contracts

10. Cardiff Business School-12 June 2008 10 Legislative context Equality Bill August 2007Discrimination Law Review proposed a single equality duty encompassing race, sex and disability. Some authorities exempted June 2008Announcement of Government response to consultation expected

11. Cardiff Business School-12 June 2008 11 The Future for the Equality Duties The Government commitment on Equality Bill: “ A single equality duty…will require public bodies to consider the diverse needs and requirements of their workforce………” Trade Unions want: A strong public sector duty across all grounds Specific public sector obligations covering procurement Extension of the duties to the public and private sectors