9th November – Unequal Pay Day?

November 9 2015 marked Equal Pay Day. According to statistics, the difference in male and female salaries means that as of 9 November 2015 women are effectively working for free until the new year, whilst their male counterparts continue to be paid.

In 2014 the Office of National Statistics outlined that the gender pay gap, based on median hourly earnings, excluding overtime, for full-time employees stood at 9.4%.

Equal Pay legislation has been in place since the Equal Pay Act of 1970, yet 45 years later, the pay gap is still in existence. Some may argue that there is some inevitability that women will earn less than their male counterparts, be this due to them taking time off from their full time employment to have children or working part time to facilitate caring responsibilities. However, this should not prevent a woman earning less than a male undertaking the same employment. This principle is enforced by the Equality Act 2010.

Under this legislation if an employer has a male and female undertaking the same employment but on different contractual terms they must show that the difference is due to a material factor that is neither directly nor indirectly sex discriminatory. Policies which may appear gender-neutral will still require justification if in practice they have a disproportionate adverse impact on women e.g. pay structures which disadvantage women more than men because generally they work shorter hours or have shorter service. If an employee feels that their rights under this legislation are not being afforded they can bring a claim in the Courts / Tribunals.

The legislation therefore appears to offer protection against a gender pay gap, yet the gap still exists. There are a number of reasons for this. For example, to bring a claim a woman requires evidence of the difference in pay and whilst the legislation prevents employers having clauses preventing employees discussing their earnings this is not to say in practice such policies aren’t followed.

Whilst the information should be obtainable, if an employee starts asking questions regarding a male colleague’s salary, an employer may pick up on this which could have a detrimental impact on the inquiring employee’s position. Legally this should not be the case, however, there is still a certain tarnish that employers apply to employees who complain or seek to make claims. The introduction of Employment Tribunal Fees is also a strong deterrent to people bringing claims, even if their case is relatively strong.

It therefore seems that whilst the legislation is in place to seek to reduce the gender pay gap, it is not, for a number of reasons being actively pursued and enforced, for this to be done additional polices such as pay transparency may need to be considered. For now however, it seems the gender pay gap is well and truly here to stay.