By Pam Kenworthy OBE.
There’s been a flurry of interest in the news recently around the vexed issue of the “gender pay gap” focussing on causes and possible solutions.
Women in the European Union were first promised equal pay with men in the Treaty of Rome in 1957, nearly 60 years ago. This was followed up in the UK in 1970, a mere 45 years ago, by the Equal Pay Act.
Despite legislation, the most recent review of the differences in pay between men and women by the Office for National Statistics still shows the UK pay gap at 9.4%! (Editor’s note: The Women’s Equality Party says the pay gap is 19%!)To be fair this has dropped from 10.0% in 2013 and is the lowest since records began in 1997 when it was 17.4%. The figures also show real progress for young women aged 22-29 who have actually overtaken the pay of their male counterparts in part time jobs. But depressingly, women over 40 remain at a massive disadvantage.
Mind the midlife pay gap
The reasons for this relate to women taking time off for child care responsibilities and being over represented in low pay industries. However, this doesn’t explain why women in senior positions earn lower pay and a smaller bonus than their male counterparts or why they struggle to get into senior positions in the first place. The Guardian notes that while men in director roles earned £138,699 on average, their female equivalents took home £123,756. The average male bonus was almost twice as high, at £4,898, compared with £2,531 for women. These women are far less likely to have had any significant career break, so the reasons for the difference are baffling in an age when organisations all have equality and diversity policies.
So will Prime Minister David Cameron’s plan to make any company with more than 250 workers reveal how much on average it pays men and women make any difference? Will naming and shaming work? There is certainly a long held belief in government, supported by academic research, that the publication of data in health and education drives improvements. We also know that the voluntary approach has resulted in less than half a dozen companies publishing their results.
However, outside of large organisations, the pay audit requirement is an important additional step. The Fawcett Society, which campaigns on this issue, has been calling for the enactment of section 78 of the Equality Act for some time, together with expanding opportunities for quality flexible and part time working, and improving parental leave.
What can be done about age discrimination?
In the meantime, where does this leave older women who feel disadvantaged at work in comparison with younger colleagues or who are suffering from lower pay? Discrimination in the work place is not just limited to pay. It can cause issues around recruitment, selection for promotion and harassment, in which case how do you put things right?
ACAS (the UK Advisory, Conciliation and Arbitration Service) recently published its new equality guide which gives advice on understanding discrimination law, preventing discrimination and what to do if it happens. It has specific guidance on equal pay as well as age discrimination.
The guide encourages employers and employees to discuss issues informally and through internal grievance procedures to find solutions. If this works, it should be the quickest and most cost effective way of resolving a workplace problem.
Failing that, a woman can bring a claim in the Employment Tribunal. Statistics produced by the Employment Tribunal Service show that age discrimination claims increased steadily between 2006/07 when the Employment Equality (Age) Regulations 2006 came into force and 2013.
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However, since the introduction of fees at the end of July 2013, cases have dropped from around 250 per month to approximately 80. In my view this is a shocking attack on access to justice for ordinary women, in particular. This is not a view shared by the Court of Appeal, however, which does not accept that introducing fees in employment tribunals has caused the reduction in claims.
Making a discrimination claim
Bringing any UK Equality Act claim is difficult because the law is far from straight forward and not for the faint hearted. The introduction of fees also means that proceedings are expensive. To bring a claim in a tribunal, you have to pay a fee (currently £250). An initial fee is required to issue (i.e. start) a claim and a further fee will be payable if the claim doesn’t settle and goes to a hearing (currently £950).
As a consequence, you can end up paying as much as £1200 and you will not necessarily get this money back if you win. This is something to bear in mind because although compensation awarded in age discrimination cases in 2013/14 included a maximum award of £137,000, the median award was £6,000 and the average £18,801. Women on benefits or low pay do not however have to pay for those fees, known as “fee remission”.
Resources to help
The most important thing to do if you think you have been discriminated against is to get specialist advice and then you can decide how to proceed. You shouldn’t rely on friends or family in this sort of case. If you are a trade union member, then the union will help you with drafting a grievance and their solicitors will pursue a claim for you if it’s not possible to sort out your problem. You may have legal expenses insurance as part of your house insurance policy and you can get help that way also.
ACAS can also assist via their free helpline 0300 123 1100 or they can conciliate an agreement prior to the formal commencement of proceedings.
If you are on low pay, legal aid is still available for discrimination claims and you should ring Civil Legal Advice 0345 345 4 345 or visit My Advice Gateway. You can check if you are eligible for legal aid in England & Wales on gov.uk (the rules are different in Scotland and Northern Ireland).
Be aware that free advice from any organisation is generally reliant on your having a reasonable case in law. It’s important to bear in mind that employers are able to defend an equal pay claim on the basis that the reason for the difference is due to a genuine factor and not based on the sex of the employee. Other age discrimination claims can be defended by the employer showing that their actions are ‘a proportionate means of achieving a legitimate aim’. This means it must be proportionate, appropriate and necessary and economic factors such as business needs and efficiency may be seen as legitimate aims.
If you have had a successful age discrimination or equal pay claim and would like to share your story, please get in touch at info @ themuttonclub.com.
You may also like Women On Boards – Still Too Few and Building Confidence Through Changing Limiting Behaviours.
Pam Kenworthy OBE qualified as a solicitor in 1982 and was awarded an OBE for services to Legal Aid in 2014. She worked at Thompsons the trade union practice specialising in personal injury and discrimination law and also taught and lectured in employment law at both Sheffield universities and Sheffield College. On returning to legal practice Pam became a partner in regional law firm Howells in 1994 and from 2007 headed up their publicly funded telephone advice services (Community Legal Advice). She now runs her own legal services consultancy.