Employment law and workplace equality

With International Women’s Day taking place on 8 March, Andrew Brett looks at the extent to which UK employment legislation has helped to achieve equal rights for women and whether more work is needed to achieve equality in the workplace.

Equal Pay

­The 1970 Equal Pay Act established the principle that men and women should be paid the same for equal work and also for work of equal value.

Back in the 1970s it was not that unusual for women to be paid less than men even though they were performing similar jobs. Progress has been made as there is wider recognition that this should not happen, and dedicated HR departments have drawn up grading schemes to pay employees according to their grade rather than their gender.

However, one of the biggest difficulties has been obtaining the data to show whether in practice men and women are being paid the same. This is not an unusual factor in cases where staff receive individual bonuses. Consequently, it was a welcome recent development for legislation to be introduced requiring companies with more than 250 employees to provide pay details on the basis of gender. This has already had an impact, as demonstrated by the revelations that the BBC has had significant pay differentials for its staff. Clearly, one weakness is that there are plenty of smaller employers who are not required to disclose data but it is a step in the right direction.

One of the biggest sources of employment tribunal litigation in recent years has been to do with equal value claims, in particular whether job evaluation schemes are fair and whether women have been undergraded either as a result of using out of date data and/or the criteria have been tainted by discriminatory factors. The public sector has had to deal with claims worth billions of pounds and it has been reported that Birmingham City Council has set aside £700m to cover these claims. It now appears that large supermarkets are being questioned about the fairness of their schemes with Morrisons facing a reported potential £100m compensation claim after being accused of paying female workers less than men doing comparable jobs. It seems that there may be quite a lot of work for larger employers in the private sector to do in respect of equal value but it goes without saying that it is unsatisfactory if large scale litigation is necessary which will take years to complete.

Maternity Rights/Pregnancy

Huge strides have been made in terms of the amount of leave that a mother receives as maternity leave and it does seem remarkable today that, back in the 1970s, there simply wasn’t any. As time progressed, maternity leave was available following a period of two years of working for the same employer, which arguably restricted women’s career choices if they wanted to start a family. It is now possible to take up to 12 months’ leave and a recent development is that some of this can be shared with a partner.

The amount of maternity pay is not high as there is only a right to 90% of pay for the first 6 weeks and £140.98 or 90% of the employee’s average weekly earnings (whichever is lower) for the next 33 weeks. This may deter some mothers from taking as much leave as they would have liked. It is down to individual employers to decide whether or not they wish to give additional pay but, even where this does happen, most typically in the public sector, it is only for a few weeks and not the whole term.

There are rights ensuring that a mother has a right to return following maternity leave and protection if there is a redundancy situation during their leave. One of the difficulties is that, in practice, some employers do not want staff to return and make life difficult for them, for example by not giving them work or having redistributed their clients. Some employers might prefer staff who covered the leaver’s work and they might also have concerns that mothers may want more flexibility in their working arrangements. This is one of the limits of the law, as the return largely depends on the employer’s culture and their individual manager. Some employers are much more supportive than others. The fact these rights are still regularly litigated at tribunals shows that this still is a major concern.

Sex Discrimination/Flexible working/ Family friendly rights

Sex discrimination is prohibited under the Equality Act 2010 and overt direct discrimination is rarer than it was 40 years ago, although as we know from the Harvey Weinstein story and the #metoo movement, harassment at work still occurs and individuals are reluctant to speak out.

One of the barriers to equality is that employers can impose gender neutral criteria which are much harder for women to meet in practice. For example, early or late shifts may be difficult for women due to their child caring responsibilities. Whilst it is possible to argue that a working condition indirectly discriminates against women, in practice women are often reluctant to embark upon litigation even if they feel that the employer has treated them poorly

There is a right to request flexible working but no right to have it granted although employers must act reasonably in considering the request and can only refuse it if there is a business reason for doing so. Some employers are more willing than others to be flexible and, with smart phones and laptops, there is greater acceptance that workers should be able to undertake some homeworking.

On the positive side, there has been legislation allowing parental leave of up to 18 weeks’ per child which can be taken at any point up to the child’s 18th birthday. The disadvantages are that this has to be taken in weekly chunks rather than individual days and that it is unpaid.

Conclusion

There are now far greater statutory protections and rights for women today compared to 50 years ago yet it is so disappointing that women are still having to fight to have those rights respected. It is important to recognise that legislation can only assist so far and, although in some instances it could be strengthened, the attitudes of employers, staff and society as a whole will be of fundamental importance in achieving gender equality.

Andrew Brett is a Senior Solicitor at nplaw, specialising in employment law. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or by telephone 01603 223101.