Time to repeal the EqPA

The true path to reducing the pay gap is to allow all gender-based pay discrimination to be challenged, argues Michael Rubenstein.

Recent months have seen attention focus on the persistence of the pay gap between women and men. More than 30 years after the Equal Pay Act 1970 (EqPA) came into force, there is still a substantial differential between the average earnings of women and men.

One solution advanced by the Equal Opportunities Commission (EOC) is that employers should be required to take the initiative and look at their own pay structures to see if there is evidence of anomalies. If so, they would be asked to carry out a full-scale pay audit and adopt a plan of action. The EOC is suggesting that to overcome the potential disincentive to taking a proactive initiative, employers should be offered some sort of "amnesty" as regards liability for past discrimination uncovered.

Employers, of course, have had an "amnesty" as regards equal pay already. It took place between 1970 and 1975. Offering a further amnesty for breaking a law that has been in force since 1975 might be thought inappropriate, however laudable the underlying sentiment. In any event, an amnesty would almost certainly require not just a change to UK law, but also revision of EU legislation since it would entail depriving equal pay claimants of the full legal remedy to which they are entitled.

Equal pay audits - whether voluntary or mandatory - are certainly to be encouraged, but there is a fundamental reason why they only have the potential, at best, to solve part of the problem. This is that many women are paid less than men - not because they should be receiving equal pay, but because their work is discriminatorily undervalued because of their sex. For example, the work women do may be worth 90% of that of a potential male comparator, but they only receive 75% of the pay.

Where jobs are largely segregated by sex, the work women do is often undervalued in terms of the pay and benefits afforded, compared with that of men, judged by the skill, effort and responsibility involved in their respective jobs. There are powerful reasons for suspecting that women's work is undervalued because it is done by women.

Yet our legislation, based on the contractual principle of the equality clause, only allows this undervaluation to be challenged in the most blatant cases of pay discrimination: where there is unequal pay for like work, work rated as equivalent or work of equal value. The anti-overlap provisions in the Sex Discrimination Act prohibit any claim under that legislation relating to the payment of money regulated by the woman's contract of employment.

"Equal pay for equal work" was a powerful slogan for the pioneers of modern feminism. When I first began writing about pay and industrial relations in the 1960s, my key reference was a book published by the old Ministry of Labour called Time rates of wages and hours of work. This listed the collectively agreed industry-wide rates and those set by wages councils. Almost without exception, for each job or grade, there was a woman's rate and a man's rate, and the woman's rate was significantly lower than that for men. In retrospect, it is not surprising that equal pay was the first strand of employment discrimination to be addressed by legislation. A restrictive definition of the circumstances in which gender-based pay discrimination can be challenged may have been the price.

It is noteworthy that a claimant seeking to prove that they have been discriminated against on grounds of race, in respect of their pay, is not required to show that they are employed on equal work to that of their comparator. Nor is there such a requirement where it is alleged that the grounds for pay discrimination are disability, religion or belief, or sexual orientation. Surely the time has come to remove this anomaly as regards gender-based pay discrimination.

This can be done by repealing the EqPA and allowing pay discrimination claims to be brought under the Sex Discrimination Act, bringing the law in this sphere into line with the other discrimination strands. Time limits would be made the same, the upper limit on compensation removed and awards for injury to feelings would be permissible.

Proving sex discrimination in contractual pay and benefits would operate in much the same way as proving other forms of sex discrimination. A finding that the claimant and her comparator were employed on equal work would certainly suffice to shift the burden to the employer to show that sex discrimination played no part in the difference in pay. This would have the added benefit of clarifying the seemingly interminable jurisprudential dispute as to what an employer must prove to satisfy s.1(3) of the EqPA.

Proving that they are employed on equal work, however, would be only one way in which claimants could establish a prima facie case of sex discrimination in pay. Where those in predominantly male jobs are in receipt of bonus payments, for example, and those in predominantly female jobs are not, that would be likely to create an inference sufficient to shift the burden to the employer to provide a non-discriminatory explanation. In such a case, it would be open to the employer to show by evidence that the explanation was that the two groups were employed on unequal work. Similarly, as mentioned, an employer would be called on to provide a non-discriminatory explanation for disproportionately paying jobs that are mainly done by women less than a job evaluation would suggest.

Equal pay is a slogan. The true path to reducing the pay gap is to allow all gender-based pay discrimination to be challenged.