Equal Pay – Seán Crossan's Scots Law

Unequal pay? A thing of the past?

Photo from HiddenHerStories Blog and Podcast

By Saad Niaz, Anna Stevenson, Kaspar Stewart and Jodie Williams (Editor: SJ Crossan)

To put it simply equal pay is when both men and women who perform equal work get paid equally. This is set out in the Equality Act 2010 which we will discuss later in this post. If you are an employer, it is extremely important to take note of this. It does not only apply to salary. But it takes into consideration all terms and conditions in their contract such as holiday entitlement, bonuses, pay and rewards schemes, pension and any other benefits your company may offer (Equality and Human Rights Commission, 2019).

Now we would think that in this day and age both men and women would be getting paid equally, unbelievably, in 2019 the data from Britain’s largest companies should that men are still mostly getting paid a lot more than women. Even with the amount of campaigns that women’s groups are bringing forward, the startling figures show that 78% of Britain’s biggest companies have a pay gap favouring men (Petter, 2020).

The Beginning of Equal Pay

Shockingly, this has been a problem for over 40 years. Prior to 1970, women in the UK, especially in the private sector, were on different and lower rates of pay, no matter what their skill levels were (Wage Indicator, 2020).

In 1968, women who were sewing machinists at Ford’s Dagenham Factory went on strike as they argued that their work demanded the same amount of skill and effort as work carried out by Eastman cutters and paint spray operators, even though their job had been graded higher. This strike sparked a movement and before we knew it, we had many other equal pay strikes throughout Britain. This led to the formation of the National Joint Action Campaign Committee for Women’s Equal Rights (NJACCWER) who then went on to organise a big equal pay demonstration in May 1969.

The Ford Dagenham Factory strike also motivated the Women’s Liberation Movement to take more action. They continued to fight for equal pay of equal value and also and sexual discrimination both in the workplace and at home. One of their main slogans was simple but effective “Equal Pay for Equal Work”. Two of their other demands included equal education and training as well as free 24-hour childcare. This was being fought for to allow women to be financially independent from their father, husbands and other males.

Barbara Castle MP, who was UK Employment Secretary of State at the time and eager to address the obvious unhappiness and distress caused by the issue, promoted the Equal Pay Act 1970. This allowed equal pay claims to be made by women who were working in the private and public sector. This act will be discussed further in this article. When this legislation was brought out, it really highlighted the problems in the workplace to do with equal pay and women (Wage Indicator, 2020).

It was said that women should be paid less for two reasons, first, because their work was less skilled than men’s and in return should be paid less and second, because a woman’s wage does need to support other dependents. We can see how these assumptions would make anyone unhappy within the workplace. Many women have to support other people besides themselves such as children, parents etc.

Legislation

The first legislation which directly addressed equal pay was the Equal Pay Act 1970. This act was passed in 1970 but later came into force in 1975, and was introduced to “prevent discrimination, as regards terms and conditions of employment, between men and women” (Equal Pay Act 1970). This legislation arose after a series of high-profile strikes took place. These strikes were crucial in highlighting the inequalities in pay between men and women. (NEU, 2019)

The Equal Pay Act 1970 along with many other acts such as the Sex Discrimination Act 1975 was replaced by an umbrella act in 2010 called the Equality Act. The Equality Act 2010 set to update and simplify previous legislation.

The Equality Act 2010 and the Equal Pay Statutory Code of Practise both include the equality of terms provisions, which states that employees/individuals have a legal right to equal pay, for equal work, as compared to employees of the opposite/same sex. Additionally, pay is not limited to just contractual pay, as it includes any element of a pay package and/or any employment benefits. Pay, for example, would cover bonuses, company cars, hours of work, overtime rates etc.

The Act further states that an individual/employee can bring forward a claim for equal pay if that individual meets the criteria of equal work in comparison to a comparator. Moreover, a comparator can be further defined as an individual who is/was employed by the same employer (or associated employer) at the same work environment or at an environment where there is identical terms and conditions. (The Law Society, 2015)

The Equality Act further defines equal work and separates it into three categories; like work, work rated as equivalent and work of equal value. Determining like work involves two stages, of which the first is to determine whether the comparator is employed in work of a similar nature with consideration to the skills/effort/knowledge required to carry out the work.

Like work

Once like work is established then the next stage is to assess whether any existing differences are not of any practical importance i.e. are differences, of crucial importance in the performance of the job regardless of job description. Additionally, at this stage particular attention is paid to the frequency of occurring differences and to the nature/extent of any differences. Employers responding to a claim must then sufficiently demonstrate that crucial differences of practical importance exist, justifying difference in pay.

Work rated equivalent

Work rated as equivalent is when work is evaluated in terms of how demanding it is and is determined under a job evaluation scheme, which ultimately makes a decision based on multiple parameters such as skill and responsibility, with a stronger focus on the demands related to work. A job evaluation scheme analytically assesses the relative value of a job and typically utilises a scoring-based system to determine equal work. These schemes must be fair, non-discriminatory and not influenced by any stereotyping. ACAS provides free information on how to design and implement a job evaluation scheme.

Work of equal value

The final and third way of determining equal work, is by determining if the comparators work is of equal value, with specific reference to the demands of work made on that individual, such as the physical/emotional effort involved in work. Furthermore, work may not be particularly similar however it may be of equal value as the demands of such work is equal. This category is similar to the category of work rated as equivalent, however work rated as equivalent takes an analytical approach whereas determining equal value is centred around a more methodical and logical approach where often an industry expert is needed to clarify whether effort, skills, decision-making etc are of equal value. (Equality and Human Rights Commission, 2019)

Key Industrial Actions

It is also important to note, that any or all three stage of equal work can be used as comparison methods when bringing forward a claim. Additionally, when a claim is brought forward to an employment tribunal, the tribunal will determine the case based on its own facts so a decision for equal work in another case might not be relevant. Furthermore, an equal pay claim must be brought forth either when the individual is at the work whereby there is unequal pay or six months after leaving that position. However, if the time limit is exceeded it may be possible for the claim to be heard in ordinary courts such as the high court. Also, before launching a claim to the employment tribunal, employee/individual must before seek advice from ACAS and complete the ACAS Early Conciliation notification form before commencing. (Equal Pay Portal, 2020)

As we know, in 1970, the Equal Pay Act was passed, forbidding unequal pay and working conditions between men and women. However, the Act did not actually come into place until 1975. As previously mentioned, the need for this type of legislation was given huge impetus by the women’s industrial action at the Ford-car manufacturing plants in 1968 and also by legislation introduced by Barbara Castle in 1970. Further important industrial actions were conducted in the 1970s and 80s in which both men and women fought for their workers’ rights regardless of gender, ethnicity and class.

The Night Cleaners Campaign (1972-1975)

Three important campaigns/strikes that helped allow the Equal Pay Act to come into force were the Night Cleaners Campaign, the Grunwick Film-Processing Laboratories strike and the Miners’ strike.

During the early 1970s, and prior to this, many women across Britain were working late night shifts cleaning offices. These women were some of the most badly paid and were often taken

advantage of in the workforce. Contract cleaning was introduced, and the situation worsened – companies began to compete against each other over price which resulted in costs being cut and lower wages for the women. May Hobbs was a cleaner who had to experience this discrimination and played a key role in in initiating the struggle for better pay and conditions. She also allowed for union recognition to increase in which more protection was granted for women working in this industry.

Grunwick Film-Processing Laboratories strike, Willesden (1976–1978)

This particular strike was in regard to Asian women working as film processers in Grunwick laboratories, the unfairness they were facing in this particular industry. In 1976 Jayaben Desai resigned from her job and instigated a strike along with other working-class Asian women. The protest was in regard to pay inequality, unreasonable overtime arrangements and even racist company practices. She led this strike for two years and within this period there were many violent affairs between the protesters and the police. Desai went to the extreme measures of going on a hunger strike outside the Trades Union Congress which resulted in her union membership being suspended. The Grunwick strike was key in raising the profile of Asian women living and working in the UK. Its highlighted class and ethnic divisions in the workforce. Jayaben Desai showed passion and desire in her protests which increased the recognition of how important women’s work is in terms of industrial organisation.

The Miners’ Strike (1984-1985)

In the 1980s, the mining industry was key for thousands of workers across Britain who worked in this field. In 1984 miners went on strike in protest against the planned closure of numerous mining pits and the lack of discussion about this from the government. This would result in hundreds of lost jobs, taking a big hit at the income of many families across the UK. Women became involved in this by forming groups among the families of these miners and adding vital support to the strike. Women Against Pit Closures (WAPC) was formed, essentially putting feminist ideologies into practice – the male dominated industrial dispute allowed for women to empower themselves and take a public role in campaigning against it. Communal feedings of families in April and May 1984 allowed for the group to grow even further as it began to take on a more explicitly political role. During the strike, numerous local support groups were organised which arranged demonstrations, influenced MPs, addressed public meetings and shone exposure onto the poor conditions of miners to the wider public.

Recent Stories Regarding Equal Pay

As mentioned previously, equal pay is the right for both men and women to be paid the same when doing the same or equivalent, work. Equal pay has been an aspect of UK sex discrimination law since the Equal Pay Act 1970 and now the Equality Act 2010, as well as EU primary and secondary legislation. Although equal pay has been the law for 50 years a significant difference in pay between male and female employees still exists in today’s world of work (CIPD, 2019).

The Equality Act 2010 incorporates an equality clause into employment contracts which means that employers have a duty to ensure that men and women are paid equally for carrying out the same work or work of equal value (Crossan, 2020). In November 2018, a survey by Young Women’s Trust (YWT) found unequal pay is widespread with 20 per cent of women reporting being paid less than male colleagues for the same or similar work (Gallagher, 2019).

In today’s world of work there are various women standing up for themselves to fight for the equal pay that they legally deserve. However, according to the Young Women’s Trust more than 50% of women said they would not feel confident enough to challenge their employer even if they knew they were wrongfully being paid less than a male colleague (Gallagher, 2019).

In order to fight for equal pay people all over the world dedicate one day a year to raise awareness of the gender pay inequality. Equal Pay Day is the point in the calendar at which the average man has earned the amount the average women will over the course of the year. Data from the Office for National Statistics (ONS) shows women’s total earnings were 17.3 per cent lower than those of men in 2019, down from 26.9 per cent in 1999 (CIPD, 2019).

Kay Collins

A recent equal pay case involved Kay Collins a former head chef for employer Compass Group UK & Ireland discovering she was being paid around £6,000 less than one of her male colleagues who was less experienced, less qualified and had a far less senior title. Collins was shocked by this news as she had more than 10 years’ experience than her male colleague so asked her employer to confirm this and after the employer confirmed this was the truth Collins gave her employer the chance to resolve the issue internally. However, they did not comply so she took it upon herself to raise an official grievance which could take up to three years to carry out and would see her lose her job in the process. The employment tribunal found that in most respects Ms Collins’ work and her male colleague’s contained differences of ‘no practical importance’ and most of their responsibilities were ‘substantially the same’ and that Ms Collins ‘appeared to shoulder greater responsibility’ than one of her male comparators in some respects. Therefore, Collins won her claim against Compass Group on the majority of the grounds upon which the employer had consistently said that Ms Collins did not do ‘like work’ to that of her male colleagues. Indeed, Compass Group’s own witnesses accepted that their own evidence on a number of these grounds was inaccurate (Gallagher, 2019).

Carrie Gracie and the BBC

Another recent equal pay case involved the BBC’s former China editor Carrie Gracie who resigned from her post after discovering a male in a comparative role to hers was being paid far more. The BBC admitted Gracie had been told she would be paid in line with the north America editor, Jon Sopel, whose salary is in the £200,000-£250,000 range, but after she accepted the role her pay turned out to be £135,000. Jeremy Bowen, the BBC’s Middle East editor, is paid between £150,000 and £199,999. Gracie won her claim about gender pay inequality, received an apology and a pay-out from the corporation, which she decided to donate to a charity that campaigns for gender equality (Sweney, 2018).

Conclusion

So, it can be said that even after all these years, equal pay problems are still here and it doesn’t seem to be going away anytime soon regardless of all the work women are doing and no matter how many cases they win. We can only hope that one day, we will live in a world where men and women will be paid equally for equal work.

Bibliography

CIPD, 2019, Equal pay, Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/equal-pay/factsheet [Last Accessed 27/04/20]

Crossan, S, 2019, 2020: same old sexism (yes, equal pay again), Available at: https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/ [Last Accessed 27/04/20]

Equal Pay Portal, 2020. Bringing a claim. [Online] Available at: https://www.equalpayportal.co.uk/for-workers/ [Accessed 28 April 2020].

Equality and Human Rights Commission, 2019. What is equal work?. [Online] Available at: https://www.equalityhumanrights.com/en/advice-and-guidance/what-equal-work [Accessed 28 April 2020].

Equality and Human Rights Commission, 2019. What is Equal Pay?. [Online] Available at: https://www.equalityhumanrights.com/en/advice-and-guidance/what-equal-pay#h1

Gallagher, S, 2019, Meet the women who took on unequal pay in their workplace, Available at: https://www.independent.co.uk/life-style/equal-pay-day-women-dealing-with-unequal-pay-a9201481.html [Last Accessed 27/04/20] [Accessed April 2020].

NEU, 2019. Equal pay and The Equal Pay Act 1970. [Online] Available at: https://neu.org.uk/advice/equal-pay-and-equal-pay-act-1970 [Accessed 27 April 2020].

Petter, O., 2020. WHAT IS THE GENDER PAY GAP AND HOW IS IT DIFFERENT FROM EQUAL PAY?. [Online] Available at: https://www.independent.co.uk/life-style/women/gender-pay-gap-equal-pay-women-paid-less-motherhood-a8856121.html [Accessed April 2020].

Sweney, M, 2018, BBC reaches equal pay deal with former China editor Carrie Gracie, Available at: https://www.theguardian.com/media/2018/jun/29/bbc-reach-equal-pay-deal-with-former-china-editor-carrie-gracie [Last Accessed 27/04/20]

The Law Society, 2015. Equal pay. [Online] Available at: https://www.lawsociety.org.uk/support-services/advice/practice-notes/equal-pay/#ep511 [Accessed 28 April 2020].

Wage Indicator, 2020. A brief history of equal pay. [Online] Available at: https://wageindicator.co.uk/what-she-earns/equal-pay-history [Accessed April 2020].

Copyright Saad Niaz, Anna Stevenson, Kaspar Stewart and Jodie Williams, 28 April 2020

Pay day?

One of the most important common law duties that an employer has under the contract of employment is to pay wages to the employee.

This duty, of course, is contingent upon the employee carrying out his or her side of the bargain i.e. performing their contractual duties.

The right to be paid fully and on time is a basic right of any employee. Failure by employers to pay wages (wholly or partially) or to delay payment is a serious contractual breach.

Historically, employers could exploit employees by paying them in vouchers or other commodities. Often, these vouchers could be exchanged only in the factory shop. This led Parliament to pass the Truck Acts to prevent such abuses.

Sections 13-27 of the Employment Rights Act 1996 (which replaced the Wages Act 1986) give employees some very important rights as regards the payment of wages.

The National Minimum Wage Act 1998 (and the associated statutory instruments) and the Equality Act 2010 also contain important provisions about wages and other contractual benefits.

There are a number of key issues regarding the payment of wages:

All employees are entitled to an individual written pay statement (whether a hard or electronic copy)
The written pay statement must contain certain information
Pay slips/statements must be given on or before the pay date
Fixed pay deductions must be shown with detailed amounts and reasons for the deductions e.g. Tax, pensions and national insurance
Part time workers must get same rate as full time workers (on a pro rata basis)
Most workers entitled to be paid the National Minimum Wage or the National Minimum Living Wage (if over age 25) (NMW)
Some workers under age 19 may be entitled to the apprentice rate

Most workers (please note not just employees) are entitled to receive the NMW i.e. over school leaving age. NMW rates are reviewed each year by the Low Pay Commission and changes are usually announced from 1 April each year.

It is a criminal offence not to pay workers the NMW and they can also take (civil) legal action before an Employment Tribunal (or Industrial Tribunal in Northern Ireland) in order to assert this important statutory right.

There are certain individuals who are not entitled to receive the NMW:

Members of the Armed Forces
Genuinely self-employed persons
Prisoners
Volunteers
Students doing work placements as part of their studies
Workers on certain training schemes
Members of religious communities
Share fishermen

Pay deductions?

Can be lawful when made by employers …

… but in certain, limited circumstances only.

When exactly are deductions from pay lawful?:

Required or authorised by legislation (e.g. income tax or national insurance deductions);
It is authorised by the worker’s contract – provided the worker has been given a written copy of the relevant terms or a written explanation of them before it is made;
The consent of the worker has been obtained in writing before deduction is made.

Extra protection exists for individuals working in the retail sector making it illegal for employers to deduct more than 10% from the gross amount of any payment of wages (except the final payment on termination of employment).

Employees can take a claim to an Employment Tribunal for unpaid wages or unauthorised deductions from wages. They must do so within 3 months (minus 1 day) from the date that wages should have been paid or, if the deduction is an ongoing one, the time limit runs from the date of the last relevant deduction.

An example of a claim for unpaid wages can be seen below:

Riyad Mahrez and wife ordered to pay former nanny

Equal Pay

Regular readers of the Blog will be aware of the provisions of the Equality Act 2010 in relation to pay and contractual benefits. It will amount to unlawful sex discrimination if an employer pays a female worker less than her male comparator if they are doing:

Like work
Work of equal value
Work rated equivalent

Sick Pay

Some employees may be entitled to receive pay from the employer while absent from work due to ill health e.g. 6 months’ full pay & then 6 months’ half pay. An example of this can be seen below:

Statutory Sick Pay (SSP)

This is relevant in situations where employees are not entitled to receive contractual sick pay. Pre (and probably post Coronavirus crisis) it was payable from the 4th day of sickness absence only. Since the outbreak of the virus, statutory sick pay can paid from the first day of absence for those who either are infected with the virus or are self-isolating.

Contractual sick pay is often much more generous than SSP

2020: £95.85 per week from 6 April (compared to £94.25 SSP in 2019) which is payable for up to 28 weeks.

To be eligible for SSP, the claimant must be an employee earning at least £120 (before tax) per week.

Employees wishing to claim SSP submit a claim in writing (if requested) to their employer who may set a deadline for claims. If the employee doesn’t qualify for SSP, s/he may be eligible for Employment and Support Allowance.

Holiday Pay

As per the Working Time Regulations 1998 (as amended), workers entitled to 5.6 weeks paid holiday entitlement (usually translates into 28 days) per year (Bank and public holidays can be included in this figure).

Some workers do far better in terms of holiday entitlement e.g. teachers and lecturers.

Part-time workers get holiday leave on a pro rata basis: a worker works 3 days a week will have their entitlement calculated by multiplying 3 by 5.6 which comes to 16.8 days of annual paid leave.

Employers usually nominate a date in the year when accrual of holiday pay/entitlement begins e.g. 1 September to 31st August each year. If employees leave during the holiday year, their accrued holiday pay will be part of any final payment they receive.

Holiday entitlement means that workers have the right to:

get paid for leave that they build up (‘accrue’) in respect of holiday entitlement during maternity, paternity and adoption leave
build up holiday entitlement while off work sick
choose to take holiday(s) instead of sick leave.

Guarantee payments

Lay-offs & short-time working

Employers can ask you to stay at home or take unpaid leave (lay-offs/short time working) if there’s not enough work for you as an alternative to making redundancies. There should be a clause in the contract of employment addressing such a contingency.

Employees are entitled to guarantee pay during lay-off or short-time working. The maximum which can be paid is £30 a day for 5 days in any 3-month period – so a maximum of £150 can be paid to the employee in question.

If the employee usually earn less than £30 a day, s/he will get their normal daily rate. Part-time employees will be paid on a pro rata basis.

How long can employees be laid-off/placed on short-time working?

There’s no limit for how long employees can be laid-off or put on short-time. They could apply for redundancy and claim redundancy pay if the lay-off/short-term working period has been:

4 weeks in a row
6 weeks in a 13-week period

Eligibility for statutory lay-off pay

To be eligible, employees must:

have been employed continuously for 1 month (includes part-time workers)
reasonably make sure you’re available for work
not refuse any reasonable alternative work (including work not in the contract)
Not have been laid-off because of industrial action
Employer may have their own guarantee pay scheme
It can’t be less than the statutory arrangements.
If you get employer’s payments, you don’t get statutory pay in addition to this
Failure to receive guarantee payments can give rise to Employment Tribunal claims.

This is an extremely relevant issue with Coronavirus, but many employers are choosing to take advantage of the UK Government’s Furlough Scheme whereby the State meets 80% of the cost of an employee’s wages because the business is prevented from trading.

Redundancy payments

If an employee is being made redundant, s/he may be entitled to receive a statutory redundancy payment. To be eligible for such a payment, employees must have been employed continuously for more than 2 years.

The current weekly pay used to calculate redundancy payments is £525.

Employees will receive:

half a week’s pay for each full year that they were employed under 22 years old
one week’s pay for each full year they were employed between 22 and 40 years old
one and half week’s pay for each full year they were employed from age 41 or older

Redundancy payments are capped at £525 a week (£508 if you were made redundant before 6 April 2019).

Please find below a link which helps employees facing redundancy to calculate their redundancy payment:

https://www.gov.uk/calculate-your-redundancy-pay

Family friendly payments

Employers also have to be mindful of the following issues:

Paternity pay
Maternity Pay
Shared Parental Pay
Maternity Allowance
Adoption Pay
Bereavement Pay

Employers can easily keep up to date with the statutory rates for family friendly payments by using the link below on the UK Government’s website:

https://www.gov.uk/maternity-paternity-calculator

What happens if the employer becomes insolvent and goes into liquidation?

Ultimately, the State will pay employees their wages, redundancy pay, holiday pay and unpaid commission that they would have been owed. This why the UK Government maintains a social security fund supported by national insurance contributions.

An example of a UK business forced into liquidation can be seen below:

Patisserie Valerie: Redundant staff ‘not receiving final pay’

Up to 900 workers lost their jobs when administrators closed 70 of the cafe chain’s outlets. Disclaimer:

Conclusion

Payment of wages is one of the most important duties that an employer must fulfil. It is also an area which is highly regulated by law, for example:

The common law
The Employment Rights Act 1996
The Working Time Regulations 1998
The National Minimum Wage Act 1998
The Equality Act 2010
Family friendly legislation e.g. adoption, bereavement, maternity, paternity

Failure by an employer to pay an employee (and workers) their wages and other entitlements can lead to the possibility of claims being submitted to an Employment Tribunal. The basic advice to employers is make sure you stay on top of this important area of employment law because it changes on a regular basis and ignorance of the law is no excuse.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/05/13/inequality-in-the-uk/

https://seancrossansscotslaw.com/2019/03/31/the-gender-pay-gap/

https://seancrossansscotslaw.com/2019/04/05/the-gender-pay-gap-part-2/

https://seancrossansscotslaw.com/2019/06/26/ouch/

https://seancrossansscotslaw.com/2019/06/20/sexism-in-the-uk/

Thttps://seancrossansscotslaw.com/2019/04/30/paternity-leave/

Copyright Seán J Crossan, 5 April 2020

International Women’s Day (What’s so great about it?)

Today is International Women’s Day, but is there much to celebrate in terms of concrete progress since I spoke about this topic last year?

The answer to the question is that progress women’s equality remains very much a mixed picture. If you look at figures produced for the European Gender Equality Institute, the UK is certainly in the top 5 of selected European countries. This is in stark contrast to Central and Eastern European nations (e.g. Bulgaria, Poland and Romania). Surprisingly, Germany does less well amongst its Western European neighbours, whereas Greece and Portugal are way down the index.

A link to a gender equality index for European countries can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.070320/data/9384076/index.html

These figures may not be entirely surprising to regular readers of this Blog: in the first few months of 2020, I have highlighted the continuing gender pay gap (which continues to be stubbornly difficult to close) and pregnancy discrimination.

Speaking of pregnancy discrimination, two recent employment cases have highlighted how much of a problem this continues to be.

In 2019, an Industrial Tribunal (yes, they still exist in Northern Ireland) ruled that McGranes Nurseries Ltd had discriminated against one of its pregnant employees, Laura Gruzdaite, who was unfairly dismissed when she took time off work to attend a scan as part of her ante natal care. Ms Gruzdaite had informed her employer that she was pregnant.

In Northern Ireland, slightly different equality legislation is relevant to cases like that of Ms Gruzdaite, but the general objective is very similar. Had the case occurred in Scotland or England, we would have been discussing the Employment Rights Act 1996 which, of course, gives pregnant women a legal entitlement to take time off work to attend these types of appointment. In Northern Ireland, the relevant legislation is the Employment Rights (Northern Ireland) Order 1996.

As for the actual pregnancy discrimination, we would have been referring to the Equality Act 2010, but in Northern Ireland, the Sex Discrimination (Northern Ireland) Order 1976 contains the relevant law.

Ms Gruzdaite was awarded £28,000 in compensation from her former employers – significantly, £20,000 of this award represented an injury to feelings element.

Interestingly, the employer also got Ms Gruzdaite to sign a blank contract of employment which did not specify whether she was a temporary or permanent employee. All very suspect and an obvious breach of our Employment Rights Act too (and I’m certain of the Northern Ireland Order of 1996), but that’s a different story for now.

A link to the Industrial Tribunal’s decision can be found below:

https://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/OITFET%20online%20decisions%20as%20pdfs/Gruzdaite-v-McGranes-Nurseries-Ltd-July19.pdf

Pregnant woman ‘unfairly dismissed’ rules industrial tribunal

In the second case, from England, Maya Georgiev was employed by Hanover Insolvency Ltd. She had not informed her employer that she was pregnant; she had been absent from work due to pregnancy related illnesses; and she was subsequently called to a disciplinary meeting. At this meeting, Ms Georgiev explained the reasons for her absence from work, but to no avail as her manager dismissed her. This was an unfair dismissal in terms of the Equality Act 2010 and the Employment Rights Act 1996.

Ironically, Ms Georgiev would have been better protected had she disclosed her pregnancy to her employer from the outset, but when the employer became aware of her situation it should have recognised that it had a duty not to discriminate against her by reason of her pregnancy. The Employment Tribunal will hold a Hearing on remedy later this year.

A link to the decision of the Employment Tribunal in this case can be found below:

https://assets.publishing.service.gov.uk/media/5e565151d3bf7f3947cf26a5/Miss_M_Georgiev_v_Hanover_Insolvency_Limited_-2400113_2019-_Judgment.pdf

A link to a story about Ms Georgiev’s experiences can be found below on the People Management website:

https://www.peoplemanagement.co.uk/news/articles/worker-discriminated-against-after-boss-unfairly-dismissed-her-for-pregnancy-related-absences

Even in areas where progress has undoubtedly been made family friendly policies such as maternity leave – the English Court of Appeal recently ruled in Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police (2019) EWCA Civ 900 that it is not discriminatory to offer more generous family friendly arrangements to female employees. This may seem quite progressive on the face of things, but it continues to place the emphasis on women being the primary carers of children. It doesn’t exactly encourage a cultural shift towards more men taking time off work to care for their children.

The worst case scenario

… And finally, a rather stark reminder that, although progress for women’s rights has undoubtedly occurred, the overall picture remains very uneven. In certain parts of the world, being female means that you are more likely to be murdered. A phenomenon so prevalent in the Central American countries of Honduras and El Salvador that they refer to it as femicide.

You can find a link to this story on the Sky News website below:

https://news.sky.com/story/the-most-dangerous-place-in-the-world-to-be-a-woman-11950981

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/

https://seancrossansscotslaw.com/2020/01/11/pregnancy-discrimination-or-new-year-same-old-story-part-2/

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/03/11/born-leader/

2020: same old sexism (yes, equal pay again)

Photo by Artur Tumasjan on Unsplash

We’re still in the month January and the issue of serious disparities in pay between the sexes raises its ugly head once again. I’ve said it before; but I’ll say it again: we’ve had over 40 years of legislation in the UK (first the Equal Pay Act 1970 and now the Equality Act 2010, not to mention EU primary and secondary legislation) which should have put the issue to rest.

The Equality Act 2010 incorporates an equality clause into contracts of employment which means that employers have a duty to ensure that men and women are paid on equal terms for carrying out like work; work rated equivalent; and work of equal value.

It’s hard to believe that the groundbreaking decision of the Court of Justice of the EU in Case 43/75 Defrenne v Sabena (No 2) [1976] ECR 455 was in the 1970s and here we are, entering the second decade of the 21st Century, still talking about the issue of equal pay – or the lack of it.

There is a depressing familiarity to stories in the UK media about the lack of progress regarding this issue. This is surprising because successful equal pay claims can be be very costly in financial terms for employers. In 2019, after Glasgow City Council female employees won their battle for equal pay, there was much speculation about how the employer was going to pay the bill. One of the (seemingly) more dramatic predictions was that the City Council would have to sell Salvador Dali’s world famous painting Christ of St John of the Cross in order to meet its legal obligations to its underpaid female employees. Susan Aitken, the City Council leader, was forced to issue a denial that this was a possibility. When you realise that the estimated value of Dali’s painting starts at £60 million you begin to get an idea of the scale of the problem.

https://www.glasgowtimes.co.uk/news/16594318.glasgow-city-council-wont-be-flogging-off-famous-dali-painting-to-cover-equal-pay-claims/

That said, some years ago, Birmingham City Council was forced to sell its share in the National Exhibition Centre in order to meet the (awesome) financial burden of thousands of equal pay claims . The price achieved was £307million – although 3 years later, the asset was sold once more for an eye watering figure of £800 million (allegedly).

https://www.ft.com/content/da429608-9d8e-11e4-8946-00144feabdc0

Recent research carried out by the English law firm, Slater+Gordon, suggests that women fail to gain pay increases because they are not negotiating with their employers about this issue. Campaigning groups, such as Close the Gap, are firmly of the opinion that the onus should not be placed on women to push for equal pay; rather it should be the responsibility of the State and/or employers to achieve this goal. There has to be real cultural change in society and women need to be valued more if the gender gap is to become a thing of the past.

Links to articles in The Independent about the equal pay research that Slater+Gordon Solicitors carried out can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.280120/data/9304961/index.html

https://edition.independent.co.uk/editions/uk.co.independent.issue.280120/data/9304901/index.html

https://edition.independent.co.uk/editions/uk.co.independent.issue.280120/data/9304016/index.html

Postscript

And if you remain unconvinced about ingrained gender bias in the corporate world generally, you will find a link below to research carried out by The Independent which demonstrates how many leading tech companies suffer from the lack of women in leadership roles:

https://edition.independent.co.uk/editions/uk.co.independent.issue.200220/data/9344746/index.html

Copyright Seán J Crossan, 30 January & 20 February 2020

New Year, same old story …

Photo by Markus Spiske on Unsplash

It’s becoming depressingly predictable: the persistence of the gender pay gay in the United Kingdom.

This time last year, I was discussing with my students the struggle that City of Glasgow Council female employees were undertaking to win their claims for equal pay. After a period of industrial action, the women finally won their struggle:

https://www.theguardian.com/society/2019/jan/17/glasgow-council-women-workers-win-12-year-equal-pay-battle

We’ve just entered 2020 and it seems as if nothing much has changed in the wider world (more on this later).

Theoretically, the gender pay gap should be a thing of the past. We have had legislation in place for nearly 45 years in this country: the Equal Pay Act 1970 (which came into force in December 1975) and the current Equality Act 2010.

An info graphic which shows the number of Employment Tribunal cases in the UK involving equal pay claims (2008-2019) can be seen below:

Source: UK Ministry of Justice obtained from BBC News

True, the above figures show the number of equal pay claims in overall decline – effectively being halved (from a high of over 60,000 in 2008 to just over 30,000 in 2019); but my riposte to that would to say still too many.

In today’s edition of The Independent, new research, carried out by the Institute of Public Policy Research, indicates that female General Practitioners (physicians for our overseas readers) are paid up to £40,000 less than their male colleagues every year.

For each £1 that a male colleague earns, a woman earns 35 pence less. To reinforce this point, the article states that female GPs are effectively providing their services free of charge between September and December every year.

In language of the Equality Act 2010, the female GPs are carrying out ‘like work’ when comparing themselves to their male colleagues. There seems to be absolutely no lawful justification for this disparity in pay between the sexes.

A link to the article in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.100120/data/9277336/index.html

The equal pay laws imply a sex or gender equality clause into every person’s contract of employment. Employers therefore have a legal duty to ensure gender equality in relation to terms and conditions of service.

It seems pretty simple, so why isn’t it happening in 2020?

An explanation for this situation in the medical profession has centred around the development of a ‘two tier’ system whereby more men are partners in GP surgeries whereas a large number of women take on the role of a salaried GP. Women tend to become salaried GPs because they feel that this allows them to work flexibly around their family commitments. So, again, what we appear to be seeing is women being penalised because they are trying to balance work and family (the so called ‘motherhood’ penalty).

Also on this day …

And purely by coincidence another equal pay story …

… Samira Ahmed, BBC journalist, wins her Employment Tribunal claim for equal pay (see below):

http://news.sky.com/story/samira-ahmed-tv-presenter-wins-sex-discrimination-equal-pay-claim-against-the-bbc-11905304

And if you’re still not convinced …

… read the following article in The Independent about discrimination in pay between male and female apprentices (guess what?; it’s not the men who are the victims):

https://edition.independent.co.uk/editions/uk.co.independent.issue.150120/data/9283611/index.html