I was 10 when the Equal Pay Act was passed. It was pretty inspiring stuff. So much so that when, as a member of the girls’ choir in St Mary’s Church in Guildford, I heard that the boys in the other parish church were getting at least twice as much as us, my friends Bryony, Lesley and I wrote to the Rector and complained. He didn’t take it well. In fact in his next school assembly he condemned us in his address about “Greed and Avarice”
If only we young girls had known that, 45 years later, this inspiring piece of legislation would have got so bogged down that women would still be paid almost 10% less than men on average if we work full time and over 19% for all employment, full time and part time combined. The time has come for a new Equal Pay Act. Frankly women have been waiting long enough!
The principle behind the Equal Pay Act is that if an individual woman finds a man doing similar work and paid more by her boss she can take her employer to a tribunal and get paid equally and compensated. Sounds simple enough. But in reality this law has been hamstrung by a whole load of stupid loopholes that have developed over the years.
Did you know that if a man takes your job and is paid more than you, you can’t rely on that as evidence of discrimination? Did you know that if the man you find who is paid more than you for similar work for the same boss, works in another building, there can be serious argument that he is not “a fair comparator”? How about if your employer pays a man less, but he does not mean to discriminate, it’s just arisen that he’s paid more, the employer doesn’t have to increase your pay? Clearly we need to sweep all these away for a start!
But even if the current law worked as intended, there is something actually wrong with the very system. Our current law relies on individual victims of discrimination bringing change by enforcing a form of contract on a piece meal basis. If they win a case they only win it for themselves and sometimes there is a settlement where the woman is bought in exchange for a gagging clause. There is no power to read across to all women treated in the same way by the organisation, or to look at the company to see if discrimination is systemic. What we really need is profound culture change and radical legislation.
We should not have to rely on individual women chipping away. Firstly it should be accepted that it is all our responsibility to drive this change. We should treat women taking complaints as whistle-blowers and a valid complaint should trigger a requirement on organisations to audit how they pay people, look again at the skills required to do the jobs and do proper job evaluation studies. This should be done externally by people properly accredited to do the task and their work and plan for change should be overseen by the Equalities and Human Rights Commission. Tribunals should be able to order these reviews as part of their findings at the end of the hearing or even at the start as part of the pre litigation negotiation.
We should encourage organisations to change themselves through proper skills audits but the other important driver is to encourage negotiation. However, there has been a spate of cases recently where trade unions have come to an equal pay settlement with the employer, only to find themselves sued by disgruntled women. Any new Equal Pay Act should have a Code of Conduct that will inspire confidence in collective agreements and there should be additional guidance from ACAS where necessary.
Tribunals should have their procedures streamlined. Cases frequently take years and the more complex ones can take five years just to deal with a preliminary point! Complex cases should attract senior judges to ensure that cases move quickly through the system.
A new Equal Pay Act is also urgently needed as the old one never envisaged an employment market as we have today, with its fractured employment practices and insecure working. We need a new Act to restore and strengthen guarantees on terms and conditions for public sector workers transferred to the private sector, close loopholes in agency worker regulations, and create statutory rules against sham self-employment.
Radical though a new Act along these lines would be, we have to be honest and accept it won’t deal with two of the major causes of inequality: in my opinion, we still have not done anything like enough to allow people to work flexibly to balance their work and home lives; nor does it deal with one of the most entrenched causes of the pay gap between men and women, which is the type of jobs that women do. Nearly two-thirds of women are employed in 12 occupational groups, most of which relate to their traditional family role (caring, catering, cleaning, teaching, nursing, clerical work, etc.). To misquote Annie Lennox and Aretha Franklin: “we’re coming out of the kitchen, but we just haven’t got very far as yet!”
But that should not hold us back from making the changes we need. In fact, we should kick start the move towards a new system by having a set of rules that will last five years – time-limited provisions to accelerate progress. We should waive fees for those taking equal pay claims; they are our whistle-blowers and should be encouraged. Companies that do a full skills audit and act on it should have a defence to any claim during those five years. And for this five-year period, compensation for failure to pay equally should be limited to two years back pay, as stated in the original Act.
This deep-seated problem needs focus, political will, and an acceptance that this is a problem we all have responsibility to tackle. This choir girl is now middle aged – and is impatient to see the problem resolved before she hits retirement!