Equal Pay: Are we winning? Sandra Fredman Oxford University Old Square Chambers

Gender Pay Gap

Components of the pay gap per hour worked* Component % of gap Years of full-time employment experience 26 Interruptions to the labour market due to family care 15 Years of part-time employment experience 12 Education 6 Segregation 13 Discrimination and other factors associated with being female 29 Total 100

Why aren’t we winning? Equal pay With a man in the same or comparable establishment Doing like work Work rated as equivalent work of equal value Unless justifiable No proportionality Job segregation, contracting out Factors outside the market: division of labour in the home Part-time, precarious work Education, experience

The Complaints Model: Weaknesses Reliance on individual complainant – excessive strain on victim Court’s intervention random – many cases unremedied Fault-based: employer responsibility Individualised: disrupts pay structures Adversarial

Complexity through complaints A potent combination Each issue must be litigated Pay protection: (Redcar v Bainbridge ) Which terms to compare (Degnan v Redcar) Do bonuses reflect productivity (Surtees) Same employment: Same employer not sufficient- from ‘single body responsible’ (Robertson) to ‘body setting pay’ (Armstrong)

Taking Individualisation to its extreme 13,000 NHS equal pay claims; 10, 000 local government Against employers: No-fee no win solicitors now joined by trade unions Against trade unions: Discriminatory collective agreements (SDA s.77 ) No collective approach - fear that agreements or settlements will lead to discrimination claims

Outside public sector Equal pay = 0.5% of claims in tribunals Predominantly like work Long process – 11 years for Enderby Low success rate: From , 25 private sector equal pay claims reached decision stage 5 successful

Principles for change Equal pay as a fundamental right Duty to implement equal pay exists regardless of individual complaint Art 141: Member states must ensure that principle of equal pay is applied Holistic response – address causes of unequal pay Collective dimension Private as well as public

Way forward: Collective and Proactive Initiative with employer and trade union through collective approach Change systematic rather than ad hoc Responsibility with those who can bring about change; no need to prove fault Group remedies – institutional change Participation

Benefits of proactive duties Comprehensive and systematic Collective: consider whole pay structure Co-operative rather than adversarial Incorporate trade union and employee representatives Benefits to employers

Gender Duty Duty to pay due regard to need to eliminate unlawful discrimination and promote equality of opportunity Unlawful discrimination includes breach of equal pay act Gender equality scheme – consider need to have objectives that address cause of difference in pay Put into effect actions in plan within three years unless unreasonable or impracticable.

Gender Duty Benefits Endorsement of proactive approach Holistic Policy-making and service provision as well as employment Applies to contracting out Private bodies with public functions (but narrow) Weaknesses ‘Due regard’ (Elias) ‘Consider need to have objectives addressing causes’ Equal pay reviews not mandatory CF Art 141: ‘Ensure principle is applied’ Public sector

Building on the gender duty: A proposed proactive duty Duty to institute equal pay within given time frame not just pay due regard Central role of trade unions: information, negotiation, monitoring Private employers Hypothetical comparator

Equal pay reviews guidance Transparent grading structures and analytic job evaluation Ongoing monitoring Role of red-circles Gender impact assessments on new policies

Synchronising with individual claims Individual claims derailing collective Individual’s role: not individual claim but right to demand compliance with equal pay duty. Key: compliance with EU law Synchrony with individual claim Adjudication: CAC