Equal Pay: Are we winning?
Sandra Fredman
Oxford University
Old Square Chambers
Gender Pay Gap 1997-2007
45
40
35
30
25
1997
2007
20
15
10
5
0
full time
median
full time
mean
part time
median
part time
mean
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 complaints
A 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