Posts Tagged ‘Equality Bill; pay audits; equal pay; gender pay gap; Fawcett; representative action; hypothetical comparators; UNISON’

The Equality bill – why it doesn’t measure up

October 29, 2009

Why do we still have such a gaping gender pay gap of 17% for full-time workers and 37% for part-time workers?

A key reason is weak legislation and the Equality Bill, currently moving through Parliament, is a prime opportunity to tackle this but it’s still falling short of the mark. So what needs to change?

 

Problem – The burden is on employees not employers
The current law does not force employers to comply with equal pay laws unless an individual brings a claim against them. Employers therefore often fail to even consider the problem, let alone prevent it or resolve it, and it is left up to the individual to take them to court.

What the bill proposes:
Clause 73 of the Equality Bill requires companies with more than 250 employees to voluntarily report on pay, and this will only be legally enforceable from 2013 if the voluntary approach hasn’t worked.

Solution:
Making it compulsory for all employers to conduct audits and produce action plans to address any differences between men and women in similar roles would be far more effective and make companies address and eliminate their unfair practices. So far, only 17% of all private firms have carried out a pay audit on their own initiative. Clearly the voluntary approach has not worked and needs to be abolished without being delayed until 2012.

 

Problem – How do you know if you’re a victim?
So, an individual has to bring a claim – but even finding out if you are being paid less than a male colleague can be a struggle. Often companies ban employees from discussing pay or bonuses in their contracts. And how does an employee figure out if any differences are actually caused by gender discrimination or by other factors?

What the bill proposes:
Clause 72 prevents employers from “gagging” employees ie, banning them from discussing pay in order to find out if there is a difference caused by a “protected characteristic”.

Solution:
The ban on” gagging” does not go far enough: employees are not legally compelled to share this information with one another if asked. It’s also unlikely that an individual would be able to properly work out whether the difference is due to discrimination or caused by other factors. Again, such a lack of transparency would only be properly addressed by an equal pay review carried out by the employer, which is more likely to have the resources, information and capacity to carry out a full job evaluation.

 

Problem – A minority of private sector employees are covered by audits
Only 41% of employees in the UK will be affected by the legislation on equal pay audits, which only applies to those working in the private sector in larger businesses.

What the bill proposes:
Clause 73 requires firms with more than 250 employees to report on their gender pay gap. Yet 59% of the private workforce are in firms that have fewer than 250 employees – completely unreachable under the current bill.

Solution:
Mandatory equal pay audits for ALL private sector employers in the UK should be compulsory.

 

Problem – Bringing a claim
If an employee does discover they are a victim of pay discrimination, they alone must take the employer to court – a process that is extremely costly and time consuming, with some cases taking up to 10 years to win. It also makes an employee more vulnerable to further victimisation. If there are female colleagues in the same workplace facing the same discrimination, they each have to bring their own claim. This only adds to the backlog of tens of thousands of equal pay claims currently moving through the system.

What the bill proposes:
The bill does not allow for representative action but this is currently being considered for employment tribunals.

Solution:
Fawcett is calling for representative action to be allowed – where bodies such as the EHRC, unions or employment bodies can bring a claim on behalf of an identifiable group of people, therefore providing the financial support and, if successful, bringing swifter justice to a group of victims simultaneously.

 

Problem – Finding a “comparator”
No other UK discrimination law requires you to find an “actual comparator” when proving discrimination ie, an actual male colleague in the same job being paid at a higher rate. Yet that’s the high hurdle you have to jump to protect your right to equal pay and it is particularly difficult if you are working in a female-dominated sector.

What the bill says:
The remedies set out in clause 61 and 62 only apply to those with an actual comparator.

Solution:
Allow women to point to a hypothetical male comparator in equal pay claims, in line with other discrimination law.

 

Problem – Tribunals lack power to assist wider workforce
Employment tribunals are limited in what they can do to combat wider, systematic discrimination in the workplace and can only rule on the individual cases. Since 70% of people have already left their employer by the time they bring their case to court it is even more difficult for tribunals to make any recommendations to the employer.

What the bill says:
Tribunals will be able to make non-binding recommendations to employers in discrimination claims, except for equal pay claims.

Solution:
Bring equal pay in line with other types of discrimination and allow tribunals to make binding recommendations (i.e. if they aren’t complied with employers are fined) in ALL types of discrimination cases.

 

The gender pay gap isn’t inevitable. But current and proposed equal pay law is too weak to tackle it. Equal Pay Day 2009 is our opportunity to change that.