What weaponry do we have in the fight for pay equality?

It has been almost 50 years since the Equal Pay Act was passed. People starting out in their career back in 1970 are likely to have retired but what progress has been made in that time? Any pride or excitement felt at the time has surely morphed into fully-fledged cynicism and distrust.

The seventies also gave us the Sex Discrimination Act (1975) and the Race Relations Act (1976). Yet it is abundantly clear from recent headlines that pay disparity both between sexes and between races is alive and well, at least it is at the British Broadcasting Corporation, the world’s largest broadcaster by number of employees (somewhere in the region of 23,000) as well as at technology giant Google.

Only a third of those on the BBC’s published list of the 96 highest-paid employees were women, and only ten employees were from a minority ethnic background. None in either group were in the higher bands. More recently, more than 60 current and former Google employees are said to be considering legal action, alleging a $40,000 pay disparity as well as sexism against women.

Since the seventies, the only significant move we have seen by the Government towards addressing pay inequality has been the Equality Act 2010, including the introduction this year of the Gender Pay Gap Information Regulations, but these are going to solve the problem about as effectively as digging yourself out of a snowdrift with a teaspoon. They require employers with 250 or more employees to publish specific data annually in relation to six calculations, but as you can see from those companies which have published their data already, this is a blunt instrument. It is only average data and pay quartile data that must be published, so if that shows that there is a gap, it does not explain why, and employers are not required to take remedial action. And the Regulations only consider the gap between genders, not between people from different ethnic backgrounds.

So what can you do if you find yourself in a situation where you feel you are being treated unfairly?

Currently, if faced with the uncomfortable feeling that you are being paid less than someone else for doing the same, or equivalent, work, your only option, assuming that simply asking for pay equality doesn’t work, is to consider litigation. Taking on your employer is not a step to be taken lightly. After all, the pockets on the other side are considerably deeper, and litigation is expensive. It isn’t exactly going to make you employee of the week either. Worse still, if matters are not settled beforehand, it will get into the public domain and start to make getting a job elsewhere much more difficult – why would an employer take a chance on you if there are other applicants who haven’t sued their employer?

Then there is the difficulty of actually winning the claim. The legal hurdles are many and varied when it comes to a discrimination case. It usually involves identifying a comparator –someone who is not female, black and minority ethnic (BME), disabled, elderly etc. but is otherwise in a very similar situation to you. Next you have to show that you have been treated less favourably than the comparator, and then comes the tricky bit. You will be required to demonstrate that the reason for that less favourable treatment is due to your sex, race, nationality, disability, age etc.

If the less favourable treatment is pay, it is often difficult to get proof. Whatever the less favourable treatment is, it is usually difficult to establish the reason for it. So you ask the Tribunal to draw inferences, and if you have enough compelling evidence, you will succeed. Even then, the employer has an opportunity to try to justify that less favourable treatment, but if it fails to do so, you will win and will recover your losses caused by the less favourable treatment, without any statutory cap being imposed. For an equal pay claim, you need to identify a comparator who is doing ‘like’ work or work of equal value, or rated as equivalent, and you can expect the employer to argue that there are a lot of significant differences between what you do and what the comparator does.

It isn’t a walk in the park, but it is currently the only weapon we have to fight pay disparity, and it can be a very effective one if handled correctly.

The alternative? Waiting another 50 years for the Government to take action.

If you’d like to discuss the issue of workplace discrimination, a claim surrounding unequal pay or any other employment matter, get in touch with Fiona Macdonald or your usual Keystone Law contact.