EQUAL pay laws were brought into force 30 years ago but a large gap still remains between what men and women earn — and, according to a survey, it is getting wider.
Although official statistics show the disparity to be about 19 per cent, the survey by PayFinder.com of 125,000 workers puts it nearer 24 per cent. More worrying still is that it widens to 30 per cent in some regions, and that it has increased across all regions in the past year.
Employees appear largely unaware of the increasing pay divide. Research by the Equal Opportunities Commission (EOC) showed that 88 per cent of women believe that they will earn the same as a man with identical qualifications; the figures show that they will be very disappointed with reality. Employers also appear either ignorant of, or unconcerned about, the pay gap, with only a minority carrying out pay reviews and an even smaller number carrying out equal pay reviews.
It is likely that the differences are caused by discriminatory practices such as the employment of women in traditionally low-paid sectors, and by the uneven burden that childcare responsibilities place on women.
So, what is being done about it? The EOC is vigorously pursuing fair-pay systems with the It’s Time to Get Even campaign. It is seeking to increase understanding of the effect that pay differences have; people are less likely to accept unfair practices if they are directly affected. The Government says that it is committed to closing the pay gap and has taken some action to improve working conditions for women with its family-friendly policies. It has also made some changes to the equal pay laws.
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Part of the Government’s commitment is reflected in its introduction in April last year, of the equal-pay questionnaire procedure, which was designed to speed up equal-pay claims. It was hoped that its use would establish the facts of potential claims early on so that more claims could be resolved before litigation. It is apparent that individuals are using the procedure, with a questionnaire being served in a large proportion of cases.
The effect, however, is limited given the difficulties that employers face in providing specific information without breaching confidentiality and data protection laws. An employer should not generally disclose “personal data” without the consent of the individual. Unless consent is given, employers can provide general pay information only rather than information that would enable an individual to identify her comparator. Individuals are frequently left with no alternative but to bring a tribunal claim and seek an order from the tribunal compelling disclosure of specific pay details of other employees.
So, with the pay gap widening, what more can be done? A huge obstacle to change is the secrecy surrounding pay. Employers and employees typically consider salary details to be highly confidential and are not happy for them to be freely disclosed. European law requires that pay systems are transparent, or capable of being understood by all users. Employers with transparent pay systems generally have nothing to fear as they usually operate fair practices. Where a pay system is not transparent, and a woman is able to show some indication of sex discrimination, the burden of proof switches to the employer, who must demonstrate that his pay system does not discriminate.
Employers must become more prepared to show how decisions regarding pay are taken if matters are to improve. The EOC would like to see more employers carry out equal-pay reviews and in its Equal Pay Code of Practice, provides guidance on how to do this. At the very least, clear pay reviews should be carried out and records kept to show what was taken into account when the decisions were made. The more structured a pay system is, the more likely it is to provide for equal pay, which in turn limits the risk of litigation. It is also easier to check the fairness of a pay system that has a clear structure than one that relies on managerial discretion.
There is still a long way to go before the aim of the Equal Pay Act 1970 is realised. Employers and employees should work together to avoid unnecessary and expensive litigation and resources being wasted so that all workers are given a fair deal.
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The author is a senior associate in Addleshaw Goddard’s discrimination group