Institute of Employment Rights Using the Equalities Bill to end the gender pay gap Critical overview II Victoria Phillips

Equal Pay Act 1970 Equal Pay Act 1970 (EqPA) into force 1975 (at same time as Sex Discrimination Act 1975 – 29 December 1975) Aimed primarily at discriminatory terms in an employment contract Sex Discrimination Act 1975 covers discrimination in the formation, variation and termination of employment contract See also Article 141 EC Treaty enshrines EC right to equal pay for equal work “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”

How EqPA works? Prohibits discrimination in relation to all contractual terms. Implies an equality clause into the contracts of all employees, which modifies an employee’s contract so that none of its terms are less favourable than those of comparable employee of opposite sex. Does not apply if employer can demonstrate that the differential claimant/ comparator due to a “genuine material factor” other than sex.

Has EqPA worked? (1) Outlawed “men” and “women’s” rates for jobs. EC law and case law grafted on to EqPA – concept of equal pay for work of equal value. July 2008 ACAS figures 58,513 claims in previous year – time takes to pursue a claim. Has halved gap between men and women’s hourly and weekly earnings but still gender pay gap. Economic and social issues – concentration of women in part time work and job segregation.

Has EqPA worked? (2) Judged by rate of progress since EqPA will take a further 44 years for average full time employee to achieve pay parity with equivalent male full-time worker. “The gender pay gap is one of the most pernicious, longstanding, significant and unjustifiable examples of workplace inequality in this country, and it is caused by many facets of our society, not least direct discrimination” (John Penrose M.P 2 December 2009) Point for statisticians – calculation used “mean” average pay until 2004 when ONS moved to compared “median” hourly earnings (under-represents the scale of gender pay gap. EU still uses mean) Impact of introduction of National Minimum Wage – differential between men and women in bottom 20% of earners only 3.8% Public sector gap 13.7% Private sector 22%

Current Problems with EqPA Boundary between EqPA/ SDA Need for an actual not hypothetical comparator (highly segregated workforce) “same establishment”/ “common terms and conditions” Individual claim must be brought Unintended consequences of JES – rewards employers who do nothing/ have obscure pay schemes? Speed – Joss v Cumbria CC Not about “fair” pay

Direct Discrimination Clause 66 Use of sex discrimination law rather than equal pay. Can use if: –The reason for the lower pay is direct sex discrimination –The usual route of equal pay cannot be used –The reason that the usual route cannot be used is something other than the justification that the employer put forward for the difference in pay. Gateways remain same: –Broadly similar –Work rated as equivalent by a valid jes –Work that is of equal value

Defence of material factor Clause 64 New name/ same difference? Loose “genuine” but employer will still have to show reason. Must be difference between woman’s case and the man’s. Employers can defend difference in pay by either showing that the difference is for a reason other than the person’s sex or where indirect sex discrimination that the reason for the pay difference is a proportionate means of achieving a legitimate aim.

Pensions Clauses 62,63 and 127 EB reflects Preston litigation Gives rights of access to pension schemes that excluded part time workers Occupational Pension Schemes required to have a “sex equality rule” ETs given jurisdiction to hear complaints about breaches of gender equality rule and Art 141. Trustees will be able to apply to an ET to determine their obligations under the scheme. Employers right to be named as party in such proceedings and make representations.

Maternity Equality Clause Clauses Woman’s contract modified so that her maternity related pay is increased in line with any actual increase in pay, or any increase she would have been paid had she not been on maternity leave. Occupational pensions scheme also deemed to have a maternity equality rule.

Gagging (Secrecy) Clauses Clause 71 Protection for employees who talk about their pay Employers not able to enforce contract terms that try to stop employees from discussing pay terms with their colleagues (covers request for information as well as receipt of information). Treated as “protected act” for victimisation purposes.

Gender Pay Gap Information Clause 73 Power for statutory regulations to require particular employers to publish data relating to men and women’s pay for the purpose of establishing the existence or extent of any gender pay gap. Only employers who employ >250 people Not until 2013 Public bodies >150 people from 2011

Conclusion New legislation badly needed Will proposals make a difference? Does legislation lead to change anyway? Squandered opportunity/ welcome focus?