The Equality Act: Here at Last – Worth the Wait?

Today marks the introduction of the long-awaited Equality Act (EA10), a piece of legislation proposed by Labour and brought in by the current government.  Click here for the BBC’s story on it. Coincidentally perhaps, today also sees the general release of the film “Made in Dagenham” about the 1968 strike by women at the Ford car factory over sex discrimination and is credited with having led to the Equal Pay Act 1970.

I’ve written several pieces about EA10 on this blog just recently and I’ll add more from time to time.  Despite all the fanfare though, there are significant questions being asked about the effect the Act will have on the cause of equality in this country. Yes, employers will have to stop using pre-employment health questionnaires and will need to beware of third party harassment claims but, in the main, EA10 just consolidates the previous law and does some tinkering at the edges.  More provisions will come in over the next couple of years, such as dual discrimination claims, but for the time being things look pretty familiar.

Undoubtedly great strides have been made over the last forty years to make racism, sexism, homophobia etc unacceptable in society and quite right too. However, the Equal Pay Act 1970, which is abolished by EA10, was a failure: it is very complicated and expensive to pursue claims and 40 years on, there is still very significant gender based pay inequality in the workplace.  According to a report in The Guardian last month equal pay for women will not arrive until 2067.  The Chartered Management Institute conducted a survey which showed that women’s salaries increased by 2.8% on average over the last 12 months, compared with 2.3% for men, but male managers (on average) are paid £10,031 more than women managers. The situation is worse in the IT and pharmaceutical sectors than other sectors of the economy and the UK sees more gender pay inequality than elsewhere in the European Union.

The last Labour government planned to make employers disclose gender pay levels and to ban “pay secrecy” clauses in contracts of employment.  That hasn’t happened and the final position is more complicated. Pay gagging clauses are now unenforceable and employers need to consider whether to remove them from the contracts they hand out to new employees.  EA10 protects employees who discuss their pay with colleagues for the purpose of “making or seeking to make a relevant pay disclosure”.  In other words, if the employee is trying to ascertain whether they are being underpaid because of discrimination on the grounds of any one of the protected characteristics (and not just gender) under the Act, it would be unlawful for the employer to discipline them or to victimise them because of making or seeking that information.  The problem for employers is to determine when a “relevant pay disclosure” has been made – get it wrong and a claim for victimisation might arise.

Pay inequality is not going to be removed until full disclosure is required.  The current government is said to be considering its position on this issue. However, to force employers to disclose gender pay levels is going to be politically risky and might lead to discord between the parties in the Coalition Government.

The Government Equalities Office has published a useful guide to EA10 – click here to access it.

Michael Scutt, Employment Solicitor 

Employment solicitor with Crane and Staples, Welwyn Garden City, Hertfordshire. Blogger & writer. I like cycling, cricket, football and history.