Why Employment Law Reforms Will Harm Gender Equality in the Workplace

How do you achieve pay equality in the workplace between the genders?  David Cameron said in Parliament the other day that having more women in the boardroom would have a beneficial effect  – on what is not clear but I’m sure he’s right.  He was questioned in relation to excessive pay awards and bonuses to senior executives and I can’t see that women should be any less greedy than men, taken as a whole.  But perhaps his point was wider than that.

Perhaps in relation to family friendly policies and pay equality it would be a good thing to have more women in senior positions.  Apparently 47% of FTSE 250 companies do not have a woman on their Boards and it will take 98 years for women’s pay to catch up with men’s on current trends.

Women at senior levels still lag well behind on pay – 20% according to the above article in The Guardian.  At junior executive levels there is parity but why doesn’t that extend further up?  The Equal Pay legislation, contained originally in the Equal Pay Act 1970 and now the Equality Act 2010 have made steps to address the imbalance, but it has not done nearly enough.  One reason is the equal pay claims have always been expensive and difficult to pursue successfully.

There are two main types of equal pay claim.  The first is based on the concept of “Like Work”.  This means that if a person (probably a woman but could be a man) can show that she is paid less than a man for doing the same job then that can be relatively easy to succeed with.  However, the problems arise with the second type of claim, that for “work of equal value”.  That is much harder because the woman needs to prove that the job she was doing as the comparator man, although not the same job, was of equivalent value.  Unless the employer operates a job evaluation scheme that rates each role enabling comparisons between different jobs, it can be very difficult to prove the jobs are of equal value and thus that there is inequality.

The usual way it is done is for an outside expert to be appointed to come into the workplace and evaluate the roles in question.  That can take a long time and is very expensive.  ACAS offer such a service at reduced cost but there tends to be a long waiting list for it.

Employers also have a defence – if they can show that there is “a material factor” justifying the differential on grounds other than gender. This can be a very difficult obstacle for a Claimant to overcome.  If an employer seeks to pay a man more than a woman on the basis of their gender it will need to be able to justify the differential on the basis that it is a proportionate means of achieving a legitimate aim or face a claim for sex discrimination.

When the Equality Act was first drafted, it was proposed that “gagging clauses” in employment contracts should be outlawed, thus enabling employees to discuss with each other how much they got paid without being in breach of contract and thus liable to disciplinary proceedings. That was subsequently watered down so that there is now only limited protection if a person makes a “relevant pay disclosure”.

This means that if a person asks a colleague how much they get paid in order to assess whether they are being paid less because of a “protected characteristic” (ie sex, race, disability, age, religious/ philo-sophical beliefs or sexual orientation) they are protected, but if they ask out of mere curiosity they won’t be. The protection exists across more than just gender inequality.

In other words, if a gay woman asks a straight woman how much she is paid the gay woman is protected and can’t be disciplined in respect of this (and neither can the straight woman for disclosing).  However, if a straight woman asks a straight woman the same question just out of curiosity then neither party is protected if they breach their employment contracts in talking about it.

The Equality Act gives the government power from 2013 to require all companies with more than 250 employees to publish pay details, but whether that provision will ever be brought into force seems very unlikely to me in the current climate.

All in all then, the legal position for gender inequality is very difficult, and claims can be lengthy and prohibitively expensive and that may explain why we still have pay inequality between the genders.

But does it? I was asked to go on the Jeni Barnett show on BBC Radio London 94.9FM on Thursday to (briefly) dis

cuss all these issues.  Is it just down to the failings of the law or is the problem more fundamental?  Could it be the education system that is at fault for not doing enough to promote vocational or scientific courses to girls? Or is it just a reflection of the immutable fact of life that most women will want to have children and trying to balance a career and kids is hard at any level.

Maybe that is the answer.  Trying to “have it all” just doesn’t work for the majority of women.  Workplaces are not (generally) family friendly.  Where are the workplace crèches that would enable women to work more easily?  Employees with children or adults to care for can request to work flexibly, but it is only a right to request, not a right to workflexibly. The request can be turned down for “good business reasons”, which is not a very challenging hurdle.

In many places the factory and the office are still macho environments.  Here in the City it is still acceptable in many financial services institutions to take clients out to lap-dancing clubs. That is hardly the mark of a gender neutral workplace.

In one of the many government reviews of our allegedly “terrible” employment laws (cf: Adrian Beecroft) the existing flexible working rights may be watered down and the plan to allow all employees (i.e. to extend beyond parents with minor children and those who care for elderly relatives)to request flexible working may not now be introduced.  In the plethora of recent announcements, leaks reviews and proposals I think I even read that maternity and paternity rights might be rolled back – all in the name of reducing red tape and supposedly appeasing the business vote.  That will do even less to bolster the Prime Minister’s standing amongst women voters.

David Cameron may well think that more women in the Boardroom might lead to a more female friendly environment, but if his government implements policies that restrict the rights of employees (probably disproportionately on women) it will never happen.  Instead of bashing employment laws Dave, let’s have some joined up thinking!