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

The Gender Pay Gap

Photo by Suad Kamardeen on Unsplash

According to data released by the UK Government’s Equalities Office, the gender pay gap is still depressingly wide in 2019. Yes, this is depressing given the fact that, nearly 50 years ago, the Equal Pay Act 1970 was passed into law (although it wasn’t brought into force until 1975). The law on equal pay is now, of course, contained in the Equality Act 2010. It is also an area which has also been heavily influenced by EU Law.

Saturday 30 March 2019 was the final date for public sector organisations (employing over 250 people) to submit data on their gender pay gap to the UK Government. Private companies have until 4 April 2019 to submit this information. Thousands of organisations have left this to the last minute or failed to submit the information at all.

The gender pay gap problem is particularly acute in the UK university sector as the BBC reported today:

Big university Gender Pay gap revealed

https://www.bbc.co.uk/news/business-47723950

The BBC article contains a useful link allowing employees to calculate the pay gap at their organisation.

On Friday 29 March 2019, The Guardian reported that the gender pay gap amongst male and female graduates is widening (so not a positive picture overall):

Graduate gender pay gap is widening, official figures reveal

https://www.theguardian.com/education/2019/mar/29/graduate-gender-pay-gap-is-widening-official-figures-reveal

Copyright Seán J Crossan, 30 March 2019

Out of office: the work/life balance

alex-knight-192782-unsplash.jpg

Photo by Alex Knight on Unsplash

Continuity of employment is a very important legal concept.

What is it?

The period that an employee has worked for an employer without gaps which would be deemed in some way to break her service.

In Chapter 6 of Introductory Scots Law, I discuss how continuous employment gives employees access to legal rights (amongst other things):

  • Unfair dismissal protection
  • Redundancy rights and payment
  • Family friendly policies
  • Flexible working entitlement

It is important to note that, although employees will be in a much stronger position (legally speaking) than other workers or individuals in the labour market, entitlement to employment rights is not necessarily automatic. They must reach minimum periods of service (without breaks or gaps) in order to qualify.

There may be different lengths of continuous service required to access certain rights, for example:

  • 2 years for entitlement to unfair dismissal protection & payment of statutory redundancy pay
  • 26 weeks for entitlement to shared parental leave & flexible working arrangements.

Continuity of employment is not broken by the following:

  • Sickness absence
  • Holidays
  • Paternity/maternity leave
  • Adoption leave
  • TUPE i.e. transfers of undertakings
  • Temporary working abroad
  • Employer lock-outs (strikes)
  • Military service with the reserves
  • When a corporate body gets taken over by another because of a legal change
  • Time between unfair dismissal and an employee being reinstated
  • When an employee moves between associated employers
  • Temporary lay-offs

Individuals on zero hours contracts and other casual arrangements find it near to impossible to build up the necessary continuous service to gain access to these rights. They simply never work long enough for an employer for continuous periods.

For these individuals, there is also the issue of a lack of employment status which compounds their disadvantaged position in the labour market.

Proposals for reform

It was with interest that I noted that the Labour Party is intending to give new employees the right to request flexible working arrangements from the first day of employment (not from completion of 26 weeks of continuous service – the current legal position). The Labour Party must, of course, win power at the next General Election (whenever that is in these stormy Brexit climes) in order to introduce this reform.

One of the justifications given by the Labour Party for the reform is that it will benefit female employees particularly and will help close the gender pay gap. It’s certainly an interesting proposal.

Critically, the proposal would operate in a way that the employee was entitled to presume that her request would be granted. Currently, there is only a right to request flexible working arrangements – which the employer can refuse. That said, the employer must consider the employee’s request seriously.

Flexible working pattern could include annualised hours, flexi-time, job, sharing, shift working and term time working.

A link to an article about the Labour Party’s proposal can be found below:

Flexible working: Labour pledges new employee rights

http://www.bbc.co.uk/news/uk-politics-47337554

Copyright Seán J Crossan, 25 February 2019