Equal Pay: Are we winning?

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Equal Pay Are we winning?

• Sandra Fredman
• Oxford University
• Old Square Chambers

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Gender Pay Gap 1997-2007
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 Components of the pay gap per hour worked
Component of gap Years of full-time
employment experience 26 Interruptions
to the labour market due to family care
15 Years of part-time employment experience
12 Education 6 Segregation
13 Discrimination and other factors
associated with being female 29 Total
100    
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Why arent we winning?

• Equal pay
• With a man in the same or comparable
  establishment
• Doing like work
• Work rated as equivalent
• work of equal value
• Unless justifiable

• No proportionality
• Job segregation, contracting out
• Factors outside the market division of labour in
  the home
• Part-time, precarious work
• Education, experience

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The Complaints Model Weaknesses

• Reliance on individual complainant excessive
  strain on victim
• Courts intervention random many cases
  unremedied
• Fault-based employer responsibility
• Individualised disrupts pay structures
• Adversarial

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Complexity through complaintsA potent combination

• Each issue must be litigated
• Pay protection (Redcar v Bainbridge )
• Which terms to compare (Degnan v Redcar)
• Do bonuses reflect productivity (Surtees)
• Same employment Same employer not sufficient-
  from single body responsible (Robertson) to
  body setting pay (Armstrong)

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Taking Individualisation to its extreme

• 13,000 NHS equal pay claims 10, 000 local
  government
• Against employers No-fee no win solicitors now
  joined by trade unions
• Against trade unions Discriminatory collective
  agreements (SDA s.77 )
• No collective approach - fear that agreements or
  settlements will lead to discrimination claims

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Outside public sector

• Equal pay 0.5 of claims in tribunals
• Predominantly like work
• Long process 11 years for Enderby
• Low success rate
• From 2000-2004, 25 private sector equal pay
  claims reached decision stage
• 5 successful

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Principles for change

• Equal pay as a fundamental right
• Duty to implement equal pay exists regardless of
  individual complaint
• Art 141 Member states must ensure that principle
  of equal pay is applied
• Holistic response address causes of unequal pay
• Collective dimension
• Private as well as public

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Way forwardCollective and Proactive

• Initiative with employer and trade union through
  collective approach
• Change systematic rather than ad hoc
• Responsibility with those who can bring about
  change no need to prove fault
• Group remedies institutional change
• Participation

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Benefits of proactive duties

• Comprehensive and systematic
• Collective consider whole pay structure
• Co-operative rather than adversarial
• Incorporate trade union and employee
  representatives
• Benefits to employers

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Gender Duty

• Duty to pay due regard to need to eliminate
  unlawful discrimination and promote equality of
  opportunity
• Unlawful discrimination includes breach of equal
  pay act
• Gender equality scheme consider need to have
  objectives that address cause of difference in
  pay
• Put into effect actions in plan within three
  years unless unreasonable or impracticable.

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Gender Duty

• Benefits
• Endorsement of proactive approach
• Holistic
• Policy-making and service provision as well as
  employment
• Applies to contracting out
• Private bodies with public functions (but narrow)

• Weaknesses
• Due regard (Elias)
• Consider need to have objectives addressing
  causes
• Equal pay reviews not mandatory
• CF Art 141 Ensure principle is applied
• Public sector

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Building on the gender dutyA proposed proactive
duty

• Duty to institute equal pay within given time
  frame not just pay due regard
• Central role of trade unions information,
  negotiation, monitoring
• Private employers
• Hypothetical comparator

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Equal pay reviews guidance

• Transparent grading structures and analytic job
  evaluation
• Ongoing monitoring
• Role of red-circles
• Gender impact assessments on new policies

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Synchronising with individual claims

• Individual claims derailing collective
• Individuals role not individual claim but right
  to demand compliance with equal pay duty.
• Key compliance with EU law
• Synchrony with individual claim
• Adjudication CAC