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'A case of the same old, same old'

Employment lawyers Emma Satyamurti and Shubha Banerjee reflect on the recent high profile attention around equal pay. 

Equal pay dice
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Emma and Shubha are solicitors in the employment and discrimination team
The news of Carrie Gracie’s resignation and her reasons for doing so feel like a case of same old, same old.  Back in the late 60s, at about the time when employers routinely advertised jobs in two ways – those with ‘men’s pay rates’ and those with ‘women’s pay rates’ (with the men’s obviously being higher), female sewing machinists at Ford walked out over the lack of equal pay, ultimately leading to the introduction of the Equal Pay Act 1970.   

​Sometimes it really doesn’t feel as if we’ve made any progress – the formal ‘men’s and women’s rates’ labels have been removed, but that’s about it.  Carrie Gracie’s courage in publicly calling out the BBC’s failure to make adequate progress in addressing unequal pay in its ranks is admirable, and shines a welcome spotlight on this most entrenched aspect of inequality between the sexes. 

The clarity with which she has been able to articulate the issue – that it is not just about the amount of pay but about pay parity between men and women doing equivalent work – has been helpful in highlighting what equal pay is all about.   Under the law (the provisions of the Equal Pay Act 1970 have now been incorporated into the Equality Act 2010), a person can bring a claim where they believe they are being paid less than someone of the opposite sex who is doing the same or a similar job to theirs, or work that is different but of equal value.  

Gracie is unusual in having a high-profile platform from which she can make a real impact. The majority of women experiencing unequal pay suffer in silence, and may not even know that they are being unlawfully treated given the culture of secrecy that still surrounds remuneration. This is compounded by the fact that some of the worst manifestations of unequal pay arise where jobs are different and segregated along gender lines but are of equal value, yet are paid unequally;  these injustices may be harder to spot than where a woman is paid less than a man for doing the same job.

Allegations  of unequal pay for work of equal value can be seen in the recently launched case against Tesco, where predominantly female retail staff are comparing themselves with largely male warehouse staff. Some of the coverage has challenged the concept of equal value, suggesting that it means that anyone can compare themselves with anyone, which would plainly be nonsensical. In fact, the method by which the value of different jobs is assessed, and their relative values compared, involves a detailed and structured process, designed to enable an objective analysis of the elements involved in different types of work.  The debate sparked by Gracie’s intervention at one end of the spectrum, and by the far lower paid group of Tesco Claimants at the other end, is an opportunity to keep firmly in sight that women’s unequal pay infects the world of work at every level. 

One of the issues raised in some of the recent coverage of the BBC’s difficulties is the levelling up / levelling down dilemma. If women’s salaries are levelled up to match those of their male counterparts, this obviously entails an extra cost to the employer (perhaps a particular concern for public sector organisations like the BBC, conscious of spending tax-payers’ money on high senior salaries). On the other hand, reducing the salaries of the men to match women’s pay will generally be unlawful unless they consent.  The case for rectifying unequal pay by increasing women’s pay  (rather than reducing men’s) is in our view overwhelming. Firstly women tend to disproportionately perform jobs that are undervalued and poorly remunerated.  Increasing their pay where those jobs are of equal value with higher paid jobs typically done by men provides a much needed boost for women’s work. Secondly, levelling up is the only way of addressing historic inequality in pay; women can then be paid the back-pay owed, whereas reducing men’s pay can only achieve future pay equality (it would obviously be completely unworkable to claw back pay already paid).

It’s also worth remembering that in the late 1990s, when the national minimum wage legislation was being debated, large numbers of employers and MPs warned of fire and brimstone and of how businesses would go under and of how the sky would basically fall in if there was a national minimum wage.  Nothing remotely like this happened.   What did happen was that the income of the lowest paid in society increased, and in fact the gender pay gap between those on the lowest incomes was effectively eradicated – the national minimum wage legislation has probably done more for reducing the gender pay gap than anything else. 

Another issue that has arisen in recent coverage is whether the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 can sort out the problem.  The Regulations were introduced last year in an attempt to reduce the gender pay gap, which is the percentage difference between average hourly earnings for men and women.  As at last year it was 18.4% for full time and part time workers. The Regulations impose a requirement on employers to supply information about the average/median hourly pay rates of their male and female employees and workers but no specific information about whether those doing the same/similar work are being paid the same.  They don’t require employers to do anything to reduce any gaps so in themselves they can’t be used by employees such as Carrie Gracie to address her equal pay concerns, although they might provide some useful background information. 

Let’s hope that the recent news stories will raise awareness of the right to equal pay and encourage women to enforce their rights in greater numbers. Maybe then there will be meaningful progress at last. 

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