The Battle of the Sexes rages on; but is anyone really winning?
May, Merkel and, hopefully, Clinton, to many represent a huge change in our attitudes towards women and power. But despite women reaching new political heights, there remains gender inequality in the work place. The World Economic Forum estimated last year that it will take 118 years before women can expect equal pay to men at current rates of change. Why are we so unwilling or unable to bridge the gender gap?
The Equal Pay Act of 1970 was enacted at a time when it was relatively common for men to be paid more for doing the same work as women, or for better paid positions to be specifically allocated to men over women. Although the 1970 Act put a stop to overt practices of gender discrimination, by 2010 there remained a significant gender pay gap. The Equality Act 2010 was designed to “make equality a reality”, not just between the sexes, but also concerning race, disability, sexual orientation, religion or belief and age. It was intended to harmonise existing discrimination laws and strengthen them, bringing together and restating discrimination legislation and adopting a unified approach where appropriate. It included the power to make gender pay discrimination more transparent, in particular creating a new type of claim for gender discrimination based on hypothetical comparisons.
So 6 years on, why do gender inequality issues still persist? And perhaps more pertinently, why is the UK so bad at ensuring equal pay and working conditions for men and women. The Global Talent Competitiveness Index, ranks the UK as 76th in the table of 109 countries for gender earnings equality; the statistics show a gender pay gap of 19% in favour of men. To put this in perspective the UK is otherwise ranked 7th overall for global talent competitiveness.
Some positive news came on the 26th October, when the UK Office for National Statistics published its annual survey of hours and earnings, showing that the gender pay gap had in fact dropped from 19.3% in 2015 to 18.1% in 2016; the largest year on year drop since 2010. However, this change appears to be primarily due to the introduction of the living wage. Bitter sweet news, as it confirms that women still hold a disproportionately high number of the very lowest paid positions and have benefited most from having their pay levels set at £8.25 per hour (outside London).
Other European countries have been much more proactive than the UK in closing the pay gap. For example, since 2010 French companies with over 50 employees are obliged to conduct annual gender pay analysis and produce action plans for addressing differences in pay.
In April 2017 the UK government will introduce its own regulations, requiring companies with over 250 employees to publish details of any pay and bonus gap between their male and female employees. However the major flaw in the proposal is the failure to require any action to close any gaps, or any penalties for failing to do so.
So if the government won’t act fast enough, what can the people do?
Don’t accept the status quo. A Manchester employment tribunal ruled this month that a group of Asda store workers, mainly women, could compare themselves to those employed in Asda’s depot, mainly men, for the purposes of their equal pay claims, paving the way for over 7000 claims, worth over £100m. The shop staff argued that because their work was traditionally seen as “women’s work” by their employer, it was deemed as less valuable than that done in the depot by their male counterparts. The tribunal found that although the work was in some practical terms different, the terms that they were employed under were broadly similar (paid on an hourly rate, same handbooks etc).
Unfortunately the gender pay gap is not where the battle of the sexes ends.
Why are we still arguing about women being able to work and breast feeding?
Two EasyJet employees recently took the company to an employment tribunal due to its roster arrangements following their return to work from maternity leave. The two women were breastfeeding and made a flexible working request to allow them to limit the shifts they would work to 8 hours, to allow them time to express the milk required to feed their babies. EasyJet refused, arguing that it was a legitimate aim of the business to refuse to cap their shifts in order to continue to deliver its flying schedule as well as to avoid flight delays and cancellations. Rejecting the women’s request was a proportionate means of achieving this.
The tribunal found that the women had been given a choice between either stopping breast feeding, or earning less money as a result of the reduced shifts available to them; clearly a disadvantage for female crew members. It made clear that it is not reasonable to ask a female member of staff how long she was intending to breastfeed for.
Furthermore, EasyJet failed to identify any actual examples of how the proposed rotas had disadvantaged the airline, and assertions that it had was “partially informed speculation”. EasyJet’s witness conceded that the low number of bespoke arrangements would probably not cause the company any problems.
So in the absence of any economic reason for EasyJet to take the stance they did, was this a matter of pure principle? Did EasyJet feel morally justified in setting an arbitrary deadline as to when it was appropriate for a women to stop breastfeeding, and if so why?
It’s not always the women at the blunt end of the stick
The introduction of shared parental leave allows both parents to share the caring responsibility of their child. In August 2016 a Scottish employment tribunal was asked to find a remedy for discrimination suffered by Mr Snell at the hands of his employers Network Rail; who later conceded their behaviour was discriminatory. Mr Snell and his wife both worked for the rail company and sought to share parental leave. However the company’s policy allowed Mrs Snell to receive full pay for her 6 months leave, whilst Mr Snell would only receive the equivalent of statutory maternity pay for the 12 weeks he wanted to take thereafter. Initially the company refused to uphold his grievance, however they later conceded that he had been indirectly discriminated against. He was awarded nearly £23,000 by the tribunal for loss of pay and injury to feelings.
Unfortunately, these cases illustrate that whilst progress is being made in equality, both men and women still fall foul of old fashioned outmoded attitudes towards gender.
Julia Furley is a barrister at JFH Law. Julia advises clients in relation to employment law disputes. If you have any questions surrounding the content of this e-alerts, please contact Julia on 020 7388 1658, or email her at firstname.lastname@example.org.
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Julia Furley, Senior Barrister