Equal Pay: Are we winning?

Sandra Fredman

Oxford University

Old Square Chambers

0

5

10

15

20

25

30

35

40

45

full timemedian

full timemean

part timemedian

part timemean

1997

2007

Gender Pay Gap 1997-2007

 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

 

 

Why aren’t 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

The Complaints Model: Weaknesses

• Reliance on individual complainant – excessive strain on victim

• Court’s intervention random – many cases unremedied

• Fault-based: employer responsibility• Individualised: disrupts pay

structures• Adversarial

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)

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

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

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

Way forward:Collective 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

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

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.

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

Building on the gender duty:A 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

Equal pay reviews guidance

• Transparent grading structures and analytic job evaluation

• Ongoing monitoring

• Role of red-circles

• Gender impact assessments on new policies

Synchronising with individual claims

• Individual claims derailing collective

• Individual’s role: not individual claim but right to demand compliance with equal pay duty.

• Key: compliance with EU law

• Synchrony with individual claim

• Adjudication: CAC