Gender Inequality at Work is still Big News

22/01/2018

It is unlikely that you have escaped the news that the BBC’s China Editor, Carrie Gracie, resigned from her role, citing pay inequality.

It was uncovered that male international editors were earning more than Ms Gracie’s salary of £135,000 per year. In comparison, the BBC’s US Editor earned between £200,000 and £250,000 whilst the BBC’s Middle East Editor earned between £150,000 and £200,000.

When the BBC published the yearly salaries of staff that earned over £150,000 in July last year, women accounted for just a third of the BBC’s biggest earners, with only one woman in the top nine. Ms Gracie did not appear on the list.

Across the BBC, the average pay of men is 10% higher than women. The BBC has stated openly that it hopes to close the ‘Gender Pay Gap’ by 2020. 

It is said that the UK Gender Pay Gap was 9.4% for full-time workers or 18.1% for all staff in 2016.

Gender Pay Gap

The Gender Pay Gap is essentially the measure of the difference between men’s and women’s average earnings in an organisation.

Organisations with more than 250 workers are required to publish their figures by April this year, pursuant to the Equality Act 2010 (Gender Pay Gap Information) Regulations, which came into force on 6 April 2017.

So far, just over 500 firms have published their figures, including Cambridgeshire Police, EasyJet, Virgin Money and the British Museum.

Women who work at EasyJet received 52% less. The British Museum had 0% pay gap, whereas Cambridgeshire Police revealed pay differences in the mean hourly pay of 12.9% higher for women.

The Gender Pay Gap, however, is different to the question of equal pay.

Equal pay

The principle of equal pay is that both women and men should receive equal pay for equal work. Ms Gracie will no doubt seek to argue that she should receive the same pay as her male counterpart undertaking ‘like work’.

There are three categories of equal work:

  1. Like work i.e. work that is the same or broadly similar
  2. Work-related as equivalent under a Job Evaluation Scheme
  3. Work of equal value in terms of effort, skill or decision making

Equal pay claims can be brought by either gender, although the majority of cases are brought by women.

The following examples are covered by equal pay legislation:

  • Basic pay
  • Paid holiday entitlement
  • Sick pay
  • Hours of work
  • Performance related pay and benefits
  • Non-discretionary bonuses
  • Non-monetary terms

Comparator

If you believe that you may be receiving unequal pay, you will need to compare yourself to the opposite gender. This comparator can be a current or previous employee and must be or has been working in the same employment.

The comparator must be actual and not hypothetical.

Defence to unequal pay

You should be aware that an employer does have a defence to unequal pay if they can show that the variation in pay is due to a ‘material factor’ which is not directly or indirectly discriminatory.  Any defence is dependent on the individual facts of the case.

For example, a material factor advanced by an employer may be:

  • Past performance
  • Seniority
  • Length of service
  • Different hours of work
  • Geographical reasons
  • Market forces and skill shortages

Whilst a ‘material factor’ may be identified, it still needs to be shown that such material factor which is not directly or indirectly discriminatory. This is likely to be the main hurdle that an employer faces in seeking to defend an equal pay claim.

What can I do if I do not believe I am receiving equal pay?

If you believe that you are not receiving equal pay, you can request from your employer certain information that will assist in establishing whether there is a pay difference and, if so, the reasons for the difference.

You may also seek to raise a formal grievance using the employer’s grievance procedure.

It is open for an employee to make a complaint to the Employment Tribunal, whilst still working in the job or up to six months after leaving to which their claim relates. Generally speaking, if successful, the Employment Tribunal can make a declaration and enforce payment of any arrears or damages.  Arrears can go back up to 6 years before the date the claim was brought, however, there are a few exceptions to this.

Employers who lose equal pay claims may be forced to conduct an equal pay audit and publish the results.

The bringing or defending of equal pay claims is a complex area of law and you are advised, should you believe that you are receiving unequal pay, or are faced with a potential equal pay claim, that you take legal advice.

MORE INFORMATION 

If you feel that you are not receiving equal pay when compared to your work counterparts and require further legal assistance, please contact our Employment Department – our team of expert solicitors will be able to assist. Call on 01708 229444 or email us using our contact form.

This article was written by Alexander Pearce, Employment Law Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of January 2018.

22/01/2018

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