Game, set and match

2 July 2007

For the first time, the winners of this year’s ladies’ and men’s Wimbledon Tennis Championships will receive the same amount of prize money in a victory for equal pay. The contest though continues to rage, in and out of court, for employers in the public and private sector umpired by unions and lawyers.

There is no doubt that all eyes have been focussed on the public sector in their centre court battle with the unions over equal pay. In 1997, the National Single Status Agreement promised a harmonisation of pay and conditions for comparable posts that would put an end to the historic gender pay gap in local government. The main features of the single status agreement are:

One pay spine
Harmonisation of conditions of service
A standard working week of 37 hours or less
Grading reviews based on equal pay
Equal status for part-time employees
Equal pay reviews

Local authorities had until 31 March 2007 to implement “single status” but only a third have managed successfully to negotiate an agreement with workers and the unions. The net dividing the two sides is funding. The financial reality amidst threats of huge compensation payouts has meant that many authorities are proposing to equalise salaries down rather than up, creating additional conflict for the unions over pay protection and job security for their members.

Despite some very high profile cases, including the 1,300 female workers employed by Cumbria County Council, who came a step closer last week to receiving payouts that could amount to £60m, the unions have been reluctant to resort to individual litigation preferring boardroom negotiations on a fair deal for all its members. This strategic game play hit a turning point when the EAT in Allan & others v GMB (2006) held that the union had indirectly discriminated against female members by recommending a settlement for back pay rather than to bring legal proceedings, which would have been in their best interests. The union was criticised for paying more attention to pay protection for men and the future pay of all members than to the issue of the women’s back pay. The unions ideology has been further undermined by independent lawyers targeting frustrated council workers with offers of “no win no fee” deals.

According the Times, the predicted result of the public sector pay crisis is that “compensation claims for up to 1.5 million workers could cost the taxpayer more than £10 billion and mean that male staff lose up to 40 per cent of their salary.”

However, Unison, GMB and TGWU are all still in it to win it and are holding a rally and lobby of Parliament on 10 July in support of an Early Day Motion calling on the Government to provide funding for equal pay under the single status agreement, in the same way that they invested in the NHS Agenda for Change.

Just as important, but somewhat lower in profile, is the contest for equal pay in the private sector, where the employers seem to have the upper hand. According to the Office of National Statistics 2006 Annual Survey of Hours and Earnings the gender pay gap in the private sector is 22.3 per cent compared to 13.4 per cent in the public sector and yet the opposition appears weaker. To win in the private sector, employees must first overcome the handicap of less than transparent pay systems and single-handedly fight an often complex legal battle. Unfortunately, theirs is not a game of doubles with a union on their side.

The Government have attempted to address the imbalance though and, in 2003, introduced Equal Pay Questionnaires to give employees the right to ask for pay information where they believe that a comparator of the opposite sex is being paid more for the same work or work of equal value. Employees may also be fortunate to get support for their claim by bodies such as the Equal Opportunities Commission (EOC).

One such person is Bridget Bodman, who with the help of the EOC, won her equal pay claim last November. This case is a reminder of the rules of Equal Pay which state that:

Claims can be brought during employment or within 6 months of leaving employment
The comparator must be an actual person but does not necessarily need to have been employed at the same time
The term “pay” includes salary and other benefits regulated by the contract of employment.

Here, the Accountant served a questionnaire on her former employer which revealed that her male successor was paid £8000 more and received an £8640 car allowance as well as additional benefits. The Company was required to pay £25,000 in compensation as it was unable to establish a material factor for the difference which, according to the tribunal, was made all the more difficult by the absence of systems and processes as recommended by the EOC Code of Practice.

The EOC advise all employers to carry out Equal Pay Audits. Pay audits are mandatory in the public sector as part of the Gender Equality Duty, but are voluntary for other employers. Calls to make them compulsory for the private sector have so far been ignored. Mostly recently, as part of the Discrimination Law Review, the proposal to make pay audits mandatory in all sectors was rejected on the basis that to do so would be costly and would fail to address the wider causes of the gender pay gap, such as occupational segregation. It is however, recommended that equal pay come within the scope of the Single Equality Bill.

Full details can be found in the Green Paper “Framework for Fairness: Proposals for the Single Equality Bill” published on 12 June 2007. The consultation closes on 4 September 2007.