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Equal pay legislation and its impact on the gender pay gap

Article  in  International Journal of Discrimination and the Law · December 2011

DOI: 10.1177/1358229112440442

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Equal Pay Legislation and its Impact on the Gender Pay Gap

Abstract

Equal pay legislation has been in existence for over forty years in the UK and the

legal rules dealing with equal pay have been consolidated and amended recently with

the implementation of the Equality Act 2010. However, despite this problems can still

be identified with equal pay in the UK most notably the continued existence of a

sizeable gender pay gap. This article will outline the current legal rules on equal pay

and analyse their effectiveness in addressing the issue of the gender pay gap. It is

clear that a problem such as the gender pay gap is often caused in society by deeply

held stereotypical, discriminatory views and in employment by employers (and some

employees) with institutionalised discriminatory attitudes and behaviour. These

causes of the gender pay gap militate against it being tackled solely by the law

(specifically equality legislation). In this article we will undertake a comprehensive

analysis of the topic and establish to what extent the current law can facilitate the

necessary changes to eradicate this gap. In areas where it is not sufficiently robust to

do this we will analyse what further changes are required through adjustments in the

legal rules in the UK. Clearly much is to be gained from eradicating the gender pay

gap however, as will be seen there are a number of obstacles to achieving this.

*Ms Laura Gow, Graduate Student, Dr Sam Middlemiss, Reader in Law, Robert
Gordon University

1
Introduction

Progress toward removal of the gender pay gap since the introduction of equal pay

legislation in the form of the Equal Pay Act 1970 i has been reasonably slow and this

lack of progress has been widely reported in the media with recent headlines noting

that efforts to remove the gender pay gap are ‘grinding to a halt’ ii and that ‘equal pay

for women is not likely until 2067.’ iii

The Equality Act 2010 was enacted last year with its main aim being to simplify and

harmonise the existing equality legislation. It was seen by the promoters of the

legislation, the previous Government, as an opportunity to bring in new provisions to

iv
help tackle inequality of pay and narrow the gender pay gap. The broad objective

of the Act in respect of equal pay is that: “The Act’s provisions on equal pay and sex

discrimination are intended to ensure that pay and other employment terms are

determined without sex discrimination or bias.” v

However, there has already been criticism of the Act specifically relating to the

limited changes that it brought to the previous law and the various measures that

were introduced in the Act to deal with the gender pay gap that have been removed or

had their operation suspended. vi

The following quote identifies other areas where the Equality Act 2010 is lacking.
vii
“The JCHR was critical of the failure of the Government to make significant

changes to the existing provisions on equal pay, pointing out …that the Bill does not

establish new procedures for providing arbitration in equal pay disputes nor does it

impose positive duties on employers to take steps to monitor and respond to patterns
viii
of pay inequality” The shortcomings of the legislation will be analysed later in the

2
article however, what follows is an analysis of the reasons for the gender pay gap and

the statistical evidence of its nature and impact.

Analysing the Reasons for the Gender Pay Gap

A common explanation for inequalities between men and women in the workplace is

the sexual division of labour. This can be seen operating in society when traditionally

men were considered to have the right to be in employment while women were
ix
expected to refrain from working and remain in the home. It became a common

perception that the most practical thing for a woman to do was not go to work and

stay at home and look after her children. x Another traditional view was that certain

jobs were for men or women solely and that women should not do a ‘man’s job’ and

vice versa. This is known as occupational segregation. xi These ideas are firmly rooted

in tradition and could easily be seen as outdated and irrelevant in modern working

life. However, they are still having an impact upon equality and more specifically

equal pay and the gender pay gap. xii

Clearly the sexual division of labour is less relevant today and the position of women

in employment has improved judging by the current figures for female employment in
xiii
the UK. These figures show that there are currently a record number of women

employed in the UK and the rate has steadily risen over the years. In 2008 there were

approximately 13.6 million jobs filled by women in the UK and a similar number of

men were in employment. This can be compared with the position in 1985 when men

filled 2 million more jobs than women. xiv Therefore, there are more women now

working in the UK than ever before. However, men still have a higher employment

rate than women with 79% of men being employed (employed?) compared to 70% of

women. Male employment rates have steadily risen since 1971 but have levelled off

3
in recent years. However, female employment rates have increased continuously

across the same period but, almost half of women in work are employed in part-time
xv
positions compared to just 1 in every 6 men. This statistic starkly illustrates that

different employment patterns still exist between the sexes and occupational

segregation in terms of the availability of full time work is still a valid issue.

With respect to the impact of occupational segregation in Scotland this is illustrated

by the following quote: “The continuance of occupational segregation has important

economic and social implications, not only in relation to pay inequality and the

potential cost to the Scottish economy of women not realising their full potential, but

also in terms of the differential status attached to specific jobs.” xvi

One of the most important features of the sexual division of labour in modern times

(that contributes to the gender pay gap) is the disproportionately high number of

women in part time employment compared with men.

Part time employment and equal pay

The fact that half of the jobs held by women are part-time can be linked to the

traditional view (held by both men and women) that women should place family

commitments before occupational opportunities and where women undertake part

time work it complies with that notion. However, it could be argued that working

part-time is a personal choice for women. The statistics point to the fact that working

part-time can often be linked to an individual woman being responsible for looking

after a dependent member of her family. The figures taken from a report prepared for

the European Commission showed a 62.4% employment rate for women with

dependent children in Europe compared to an employment rate of 91.4% for men. xvii

This starkly illustrates that women are more likely than men to give up work (albeit

temporarily) when they have family commitments. This not only links back to the

4
traditional idea that a woman should stay at home and look after her family but also

the outdated concept that when in work (and often working part time) a woman play a

less valuable role than a man within employment. Although these stereotypical

attitudes are targeted by the equality legislation and are less in evidence nowadays

they still exist in some quarters and can be extremely harmful. One commentator

stated that: ‘the social construction of part-time work as secondary, less committed or

inferior to full-time work is thus inextricably linked with the undervaluing of women
xviii
in society.’ She reached this conclusion through analysing how organisations

commonly operate when there is a culture of long working hours. Employers will

often value long hours spent at a desk by their employees as a sign of commitment
xix
and productivity. This commentator found that although a part-time worker may be

as committed and productive as a full-time colleague an employer will often value a

full-time employee more because of his perceived commitment to the organisation

and this will often be reflected in him receiving a higher level of remuneration. As

women are more likely to be employed on a part-time basis than men they may find

they are being paid less than them for this reason. In fact, the GEO statistics

(considered in detail below) calculate that the gender pay gap between full-time men

and part-time women is 31%. Comparison between women working part time and

full time found that women working part-time in the UK had average hourly earnings

that were 25% less than women who worked full-time, with this gap widening

continuously over the past 30 years. xx

Another problem often arises when a woman wants to move from full-time to part-

time work but, find that she cannot remain in the same job to do this. The strongest

influence on women to downgrade their jobs was found to be the lack of part-time

positions available within a current occupation. (the following should be one sentence

5
with the previous one) whereas a woman’s personal characteristics, experience in the

labour market, level of education and the number of her children had a relatively

small impact. Therefore she has to accept a different job which requires a lower level

of experience or qualification than she has already attained and is consequently paid

less. xxi

The availability and quality of part-time work for women is an issue that can affect

the gender pay gap. Although part-time work is often seen as a positive way for those

with children to return to work, the gender pay gap will persist where women have to

move into lower-skilled occupations to be able to secure such flexible work. If an

individual has to work part-time at a level lower than they could have worked full-

time, it is said to be “underutilisation of their actual and potential human capital.” xxii

Women having to downgrade their jobs to secure flexible or part-time work

undermines and conflicts with strategies to improve education and workplace skills.
xxiii
Although education is no longer held to be such an important cause of the gender

pay gap, the fact that women are more educated and the increased requirement on

their part for part-time work means that women are often overqualified which is

estimated to be responsible for them receiving around 11% lower wages than men.
xxivxxv
Often an issue for a female part time worker is that although she may be

allowed to work flexibly and reduce her hours she may find that in turn she has to

intensify her pace of work so that she can accomplish what she would have done if
xxvi
she had remained full-time. (Lewis, Taylor, 1996) This is unfair as it could mean

that a part-time worker in this position is paid less for completing the same amount of

work as persons working full-time. xxvii

The reality is that changing the traditional views and attitudes of employers and others

in society can be difficult and women will continue to be more likely than men to be

6
responsible for looking after children. As a result a woman may find herself; with

less work experience than her male colleagues, having to work part-time and needing

to take a career break or abandon her career. All of this is likely to create a severe
xxviii
wage penalty for her. This links with the statistical findings below that show the

pay gap over a woman’s lifetime becomes most apparent and common at the age of

27 and peaks at 45 (around 28%) because it is during these years that childbearing is

most common that the pay gap becomes more significant. As part-time work has been

shown to be detrimental to a woman’s employment and earning level it will also have

a negative impact on the gender pay gap. What follows is an explanation of how

statistically the gender pay gap is determined.

Calculating the Gender Pay Gap

The gender pay gap is a statistical measure of the difference between the earnings of

men and women and is determined by calculating women’s’ average pay as a

percentage of mens.’ So the pay gap is the difference between whatever the womens’
xxix
figure is and 100 per cent of the mens’ figure. In 2008 the gender pay gap in the
xxx
United Kingdom was 21.4% which was one of the highest figures in Europe.

However, the statistical exercise of calculating the gender pay gap can be complicated

and the results can vary depending on the method used, the variables examined (i.e.

only full-time included or including part-time) and the type of pay looked at. To

illustrate the diversity of approaches used in arriving at this figure the Government

Equality Office (GEO) uses median hourly earnings, the Equality and Human Rights

Commission (EHRC) uses the mean average and the Office of National Statistics

(ONS) reports on the Annual Survey of Hours and Earnings (ASHE) which includes

both the mean and median measurements. xxxi Due to this variation in the methods

7
used the reported figures produced by these organisations can vary significantly

although as will be seen certain methods are regarded as more reliable than others for
xxxii
measuring the gender pay gap. With respect to the approach of the GEO the

measurement of the median gender pay gap finds the midpoint in hourly rates of pay

but it excludes the lowest and highest rates to ensure that the figures are not distorted

by any unusually high or low rates of pay. However for calculating the gender pay

gap use of the median has been criticised precisely because it excludes figures for

those paid particularly high salaries (normally men) and those paid particularly low

salaries (normally women). xxxiii One researcher xxxiv

used statistics derived from the

Annual Survey of Hours and Earnings (ASHE), the Labour Force Survey (LFS) and

the New Earnings Survey (NES) panel data set (a single longitudinal data set dating

back to 1975) to analyse the gender pay gap. xxxv She identified that various methods

that can be used with her preferred method being hourly earnings of men and women

(excluding overtime and part-time employees). Her reasoning was that overtime and

part-time work should be excluded because more men do overtime and more women

work part-time and their inclusion could skew the results. xxxvi Her research

conclusions were that the gender pay gap in relation to women working-full time

compared with men working on the same basis had lessened. However, she found

there were variations in the gender pay gap which were determined by an individual’s

circumstances. Factors such as the type of occupation and the number of dependent

children that a woman has have a bearing on the size of the gap but as was seen

earlier not such an impact on the availability on part time work. Another important

finding was that in 1975 the gender pay gap between women and men was noticeable

from the age of 18. However, in 2006 the gap in pay between genders was not evident

until the age of 34. xxxvii This does highlight a positive change in the gender pay gap

8
with the problem not now being evident for women until a later age. The gender pay

gap might be expected to increase with age as a result of career breaks taken by

women during their working life. In 2006 this trend was identified as applying across

Europe when statistics showed a clear increase of the GPG corresponding with an

increase of the age of women across all of the member states of the EU. This was

illustrated by an average figure of 3.1% of a pay gap for female employees younger

than 30 years which increased to 17.5% for those 30-39 and to 23.8% for those 40-49
xxxviii
years old. It decreased slightly, however, for those 50 years and older (21.8%).
xxxix
The Government Equality Office (GEO) also published research findings

examining the gender pay gap in the UK between 1995-1997 and 2004-2007 to

determine whether any changes had occurred. The researchers used the British

Household Panel Survey (BHPS) utilising panel regression techniques. They used a

wage model for each time period, controlled for all variables that could be associated

with pay disparity (education, unemployment, tenure). They also used a sex

segregation scale (measuring the male dominance in each occupational group) and

also controlled firm size, industrial sector, region, trade union membership and

gender. By simulating bringing women’s experience up to the level of men’s, the

researchers were also able to use the effect on the pay gap to calculate the main direct

drivers of the pay gap. xl The GEO report noted that the overall gender pay gap had

fallen between the two periods of 1995-1997 and 2004-2007 from 24% to 19%. When

comparing full-time men and full-time women in 2004-2007 the gap was 15% and

comparing full-time men and part-time women the gap was 31%. It was also

identified that the pay gap was insignificant at school leaving age, becoming an issue

(see earlier) at the age of 27 and then rising to a peak by the age of 45. xli By the use

of simulation to assess which variables impact the gender pay gap, the researchers

9
established that: 10% of the overall pay gap could be attached to occupational sex

segregation with a 10 percent more men in an occupation being equated with a 2%

higher average hourly wages. The type of industries in which men and women

worked accounted for 12% of the gap and 21% of the GPG was due to differences in

the number of years of experience of full-time work. The negative effect on wages of

having worked part-time before or having taken time off to look after family

accounted for 16% of the pay gap. They also found that 36% of the pay gap a sizable

amount could not be explained by any of the characteristics that were accounted for in

this particular study. This meant that even when a woman had the same work history

and education and was working in the same type of organisation and occupation as the

average man she would still most likely be paid significantly less. xlii This

unexplained difference is often known as the ‘pure gender effect.’ xliii The researchers

also examined the factors which had a positive impact on women’s pay. There were

more women than men working in the public sector over the period examined. This

was beneficial to women in particular and being a trade union member was beneficial

to both sexes in terms of its impact on pay (around 11% better off ). So where both

factors applied to women this could lead to a significant reduction in the size of the

pay gap for them.

Occupational segregation

Occupational segregation is another area that needs further examination as it is a

major contributor to the gender pay gap and is an issue that is difficult and slow to

resolve because men and women tend to follow different career paths. Statistics show

that men are ten times more likely than women to be employed in skilled trades and
xlv
men are more likely to be employed as managers and senior officials. Women on

the other hand are more likely to be employed in traditionally lower paid jobs such as

10
administrative or secretarial work with 20% of women in employment being

employed in this area compared to 4% of men. xlvi Women are also more likely to be

employed in the personal services, sales and customer service sectors. xlvii So there is

a clear correlation between lower paid industries and a predominance of women

workers. However there are some exceptions for example in secretarial and related

occupations, full-time women earn more than full-time men (-5.8% pay gap) and

female part-time workers in the health and social welfare associated professions also
xlviii
earn more than part-time men (-22.5% pay gap). In these sectors, employees are

predominantly female but it is interesting that the gender pay gap can also

discriminate against men rather than women. A secretarial job is one that would be

traditionally associated with women rather than men, so if women tend to earn more

money in this type of job than men it may make them more inclined to work in this

area. When looking at figures relating to occupational segregation the data is shaped

by various factors such as the size of an organisation, its location and also the over

representation of females in lower level jobs. xlix Occupational segregation is also

impacted upon by the public and private sector divide with figures from the Office of

National Statistics noting that 65% of public sector workers are female whereas 60%

of workers in the private sector are male. This divergence could have an impact on the

gender pay gap and equal pay. Another factor that might explain a woman receiving a

lower wage than a man is the element of personal choice. This would apply for

example when a woman may be more willing than a man to work in a more

worthwhile job (involving no remuneration or low pay) in the voluntary or public

service sector. l Women will be more inclined to take these jobs because the public
li
and voluntary sectors are perceived to offer a better work-life balance than the

private sector (important to women who bear childcare responsibilities). As well as

11
causing major differences in pay levels between the sexes occupational segregation

can also have an impact on the process of equal pay claims. This is because female

claimants often find it difficult to identify relevant male comparators, particularly if

they are working in a predominantly female sector. Also occupational segregation

not only impacts on the gender pay gap but it also affects the economy. It has been

estimated that if the Government could successfully remove the barriers to women

working in traditionally male-dominated occupations and increase their overall labour

market participation that it could be worth between £15- £23 billion to the UK

economy. lii “ Outdated gender norms and stereotypes around men and women’s value

in the workplace still exist, which leads to women and men doing different types of

work. In addition, men’s work is generally given a higher value both socially and

economically. Jobs traditionally done by women, such as cleaning, catering and

caring, are undervalued and paid less than jobs traditionally done by men, such as
liii
construction, transportation and skilled trades. “

It is important at this stage to consider the legislative provisions dealing with equal

pay and their impact of the gender pay gap.

Equal pay legislation in the UK

The Equality Act was passed in 2010 and this repealed most of the existing law on

sex discrimination.liv Although the new legislation contained simplified provisions

regarding equal pay the changes to the law have been minimal. To understand these

changes, the provisions regarding equal pay under the Equality Act 2010 will be

examined and compared with the previous law under the Equal Pay Act.

Equal Pay Act 1970

12
Although the UK was not a member of the European Union when the Equal Pay Act

was enacted, it has long been recognised that the Act after numerous revisions is the

means by which the UK gave effect to the Treaty. lv Under the previous and current

law a female employee can raise an action for equal pay if she could establish that she
lvi
and a male comparator are ‘in the same employment.’ A person can be a

comparator if they are employed by the same employer or by an associated employer

lvii
and they both work at the same establishment or they do not work at the same

establishment but common terms apply to them. lviii This latter point is illustrated by
lix
the case of Leverton v Clywd County Council where nursery teachers were held to

work in common and in the same employment with clerical workers for the purposes

of the Equal Pay Act 1970 soley because they were governed by the same collective

agreement. This was despite the fact that male and female employees being

considered were working different hours, had different holiday entitlement and

different pay scales. A more striking example of this was in South Ayrshire Council v

Morton, lx where a female primary school head teacher sought to use a male secondary

school head teacher as a comparator in an equal pay claim on the basis that salaries

for primary school head teachers (where 75% were female) were lower than that of

secondary school head teachers (where 75% were male). lxi Ms Morton the claimant

was employed by South Ayrshire Council and her comparator a male secondary

school head teacher was employed by Highland Council. However both of their rates

of pay were fixed by a statutory scheme determined under a national collective

agreement. Therefore, it was held that Morton’s comparator could be used because,

although the employers were separate education authorities, they were subject to a

national collective agreement which they both had to give effect to. This case applied

the principle established by the European Court of Justice (ECJ) in Defrenne v SA

13
 lxii
Belge de Navigation Aerienne that direct discrimination can have its origin in

legislative provisions or collective labour agreements and also where ‘men and

women receive unequal pay for equal work carried out in the same establishment or

service, whether public or private.’ lxiii As a consequence equal pay could be regarded

as discriminatory on the grounds of sex although the obvious way to enforce such

inequality of pay was through the Equal Pay Act rather than the Sex Discrimination

Act 1975. However, the Morton decision can be contrasted with the decision in the
lxiv
case of Armstrong v Newcastle Upon Tyne NHS Trust where the Court of Appeal

held that as the claimants and the comparators were employed by two separate NHS

trusts and because different bodies determined their pay, there was no ‘single source

of employment’ and therefore unless the employer set the employment terms of both

claimant and comparator they could not be held to have the same employer for the

purposes of the Act. lxv

Methods of comparison

At this stage it is worth briefly pointing out that the comparison underpinning an

action will be on one of three grounds. It can be ‘like work,’ ‘work rated as

equivalent’ or ‘work of equal value.’ lxvi It will be held to be ‘like work’ if the

woman’s work compared with that of a man in the same employment is the same or

broadly similar and any differences are not of practical importance in relation to the
lxvii lxviii
terms of their work. In Capper Pass Ltd v Lawton the Employment Appeals

Tribunal (EAT) upheld a decision that a woman working as a cook in a company

directors’ dining room providing meals for 10-20 people was entitled to equal pay

with two male assistant chefs who worked in the factory canteen and prepared 350

meals a day. This was despite differences such as the woman working less hours (40

14
hours per week unsupervised compared with the male chefs who worked 45 hours per

week under the supervision of the head chef). It did not matter that the work was not

exactly the same. Work is ‘rated as equivalent’ if a job evaluation study gives equal

value to both workers jobs in terms of the demands made on the worker, or would

have done if the evaluation was not made under a sex-specific system (where it sets

different values for men than it does for women). lxix Finally, work is of ‘equal value’

if it is not work rated as equivalent but, if the jobs being compared are equal in terms

of their value to the organisation and the demands made on men and women by the

job (with such factors as physical and mental effort, skill and decision-making being

taken into account). lxx The legislation ensures equal pay between men and women

but, what is pay? It has been defined by the European Court of Justice as: ‘...the

ordinary basic or minimum wage or salary and any other consideration, whether in

cash or in kind, which the worker receives, directly or indirectly, in respect of his

employment from his employer.’ lxxiii

Prior to the 2010 Act, the Equal Pay Act 1970 only allowed for an actual comparator

to be used meaning that a claimant could only use a real person and not a hypothetical

comparator in comparing his position with her. In the past a comparator did not have

to be an existing worker as on some occasions a predecessor lxxiv or successor would

suffice. lxxv However this changed in the case of Walton Centre for Neurology and

Neuro Surgery NHS Trust v Bewley lxxvi the EAT held that the previous authority for

using a successor as a comparator in a claim for equal pay had been wrongly decided.

It held that a successor could not be used as a comparator in a claim for equal pay and

it also noted that where a claimant relies on a predecessor as a comparator, the

comparison is limited to the terms enjoyed by the comparator at the termination of

15
their employment. So, the requirement for an actual comparator meant the Equal Pay

Act 1970 was much less effective than it could have been. lxxvii “This requires not

simply that they do the same type of work, but that they be employed by the same

employer (or associated employers), either at the same establishment or at different

establishments belonging to that employer (or those associated employers) where

common terms and conditions of employment are laid down for the two

establishments …The restrictive nature of this test has prompted many claimants to

try their luck under directly effective European Community law.” lxxviii

The main problem was that in industries or workplaces where there was occupational

segregation and the workforce were predominantly female, finding a comparator of

the opposite sex was often not possible. In Meeks v National Union of Agricultural
lxxix
and Allied Workers a part-time secretary was paid less per hour than those

employed full-time, as only those working 35 hours per week qualified for the higher

hourly rate. Although the Employment Tribunal said this requirement was indirectly

discriminatory, neither the Sex Discrimination Act 1975 nor the Equal Pay Act 1970

could be successfully used by her because the 1975 Act did not cover the payment of

money and there was no male comparator to satisfy the comparator requirement in the

1970 Act as all the secretaries were female. lxxx This case emphasises the problems in

relation to the requirement for actual comparators. This is exemplified when it is

noted that there is a close correlation between low pay and the proportion of female

employees in a company and in many of the lowest paying companies there is a 100%

female workforce. lxxxi

The Equality Act 2010

16
The Equality Act 2010 provides that the provisions apply to terms of a person’s

employment which are ‘in the person’s contract of employment, contract of

apprenticeship or contract to do work personally.’ lxxxii Therefore, workers and

employees are included whether they work full-time or part-time. Self employed
lxxxiii
persons can also be included under the provisions as in Quinnen v Howells

where a self-employed man could be included because he was being paid less than

two fellow self-employed female workers who were doing similar work at a

department store.

Comparators

The Equality Act 2010 provisions apply when a person is being employed to do work

that is equal to work being done by a comparator of the opposite sex. Although the

Equality Act 2010 still normally requires an actual comparator a hypothetical

comparator can now be used in certain limited situations. The benefit of using a

hypothetical comparator may be lost if an employee cannot prove their case to a high

enough level. The provisions are also limited to cases of direct sex discrimination and

therefore equal pay cases involving indirect sex discrimination would still require an

actual comparator.

Interestingly section 71 of the Equality Act 2010 allows for a claim of sex

discrimination in relation to contractual pay on the ground of sex. Such a claim would

not have been possible under the Sex Discrimination Act 1975 because contractual

pay was outside its scope. Therefore this provision would allow an employee to raise

an action where there was no comparator available, but where there was evidence of

direct discrimination on grounds of sex allowing for a claim under section 13 of the

Act. Therefore, although there have been changes to the law on comparators the effect

17
that the new provisions will have on equal pay and the gender pay gap is likely to be

restricted.

There is also provision for a ‘sex equality clause.’ lxxxvii The sex equality clause is

treated as being included in the terms of a workers employment and means that where

a contract term is less favourable than that of a comparator, it will be modified to

make it not less favourable. lxxxviii Similarly, if a comparator has a benefit in their

terms of employment that the other worker does not, the sex equality clause will

operate to include such a term. lxxxix However, this useful provision also requires an

actual comparator, so if a workplace had no male comparator doing equal work the

equality clause could not operate.

Material factor defence

A further equal pay provision that needs to be examined is the material factor defence.

Under the previous legislation the defence had been available when the employer

could prove that the variation between a man and woman’s pay was genuinely due to

a material factor. xc A genuine material factor was one that justified the reasoning

behind what would otherwise have been indirectly discriminatory levels of pay given
xci
to a woman. A notable change brought in by the Equality Act in relation to this

defence is that the word genuine no longer appears and it is now simply known as a

material factor defence. The Government omitted this word on the basis that it did not

consider that the term genuine added anything to its meaning. xcii Although the sex

equality clause implies into all employment contracts it will not have any impact if the

employer can show that the difference is in pay is due to a material factor, reliance on

which: (a) does not involve treating the employee less favourably because of their sex

than they treat the comparator and ( b) it is a proportionate means of achieving a

legitimate aim. xciii Therefore, if an employer can show that the difference is because

18
of a material factor which is not related to the claimant’s sex, this would provide them

with a defence and the sex equality rule would have no effect. xciv There is no
xcv
justification needed if the reason for the pay inequality is not gender related. This
xcvi
was confirmed by the Court of Appeal in Glasgow City Council v Marshall and

Redcar & Cleveland BC v Bainbridge & ors; Surtees & ors v Middlesbrough Council
xcvii
CA. However, when the pay disparity is sex related it is necessary to show that it
xcviii
was justified. The case law from the ECJ has highlighted that employers may

need to show an objective justification for a difference in pay between workers of

different sexes doing work of equal value. This can apply even where there is no

evidence that the employer has intentionally discriminated against women in terms of

pay and there are no apparent barriers to equal pay. xcix In Enderby v Frenchay Health

Authority and Secretary of State for Health c a female speech therapist claimed equal

pay on the basis that it was an overwhelmingly female profession and that in other

comparable NHS professions which were predominantly male, such as pharmacists

the pay was higher. The ECJ stated that where there was a significant difference in

pay between jobs of equal value and where one job was predominantly female and the

other predominantly male, that a prima facie case of discrimination would be made

out. ci In Sharp v Caledonia Group Services Ltd cii

the EAT held that employers must

always objectively justify their use of the defence. The need to justify pay differences
ciii
was affirmed in Gibson and others v Sheffield City Council when the Court of

Appeal held that an employment tribunal was wrong to find that a pay differential

between male street cleaners and gardeners and female carers was not discriminatory

on the ground of sex because it had been caused by a productivity bonus given to the

cleaners and gardeners but not the carers as it was inappropriate due to the nature of

the womens’ work. As a result of the impact of these decisions the test for the

19
material factor defence where the difference in pay is sex related has become stricter

for employers. This is because an employer is required to show that the difference in

pay is necessary and sensible rather than just genuine and this development is

significant because it means that employers will not be in a position to establish a

defence as easily. The Equality Act 2010 has clarified the law in this area and the

changes it brought in are considered below.

Although, recent changes to the equal pay provisions have been reasonably limited,

the availability of hypothetical comparators in certain situations (see below) and the

development of a stricter test for employers relying on the material factor defence will

be of some assistance in the fight for equality of pay.

Equality Act 2010 and the Gender Pay Gap

Although the Equality Act 2010 made changes to the existing equal pay provisions as

highlighted it has also introduced some new provisions that deal with the gender pay

gap more directly. These provisions revolve around transparency which is clearly an

important element in tackling the gender pay gap as otherwise the true extent of the

problem may not be realised. Transparency in this context refers to clarity in the

method of calculating pay and in the underlying reasons for employees being

allocated a position on a pay scale.

Limited use of hypothetical comparators

Comparators have already been considered but need further analysis to assess what

impact their availability or non availability can have. It has been argued that not

being able to use hypothetical comparators under the previous legislation restricted

the law’s ability to reduce the gender pay gap. civ Under section 71 of the Equality Act

20
2010 it allows employees to bring sex discrimination claims, relying on hypothetical

comparators, in circumstances in which it is impossible to identify actual comparators

for the purpose of equal pay claims. This will make it easier for the claimants to

establish a claim particularly where there are no male comparators around because of

occupational segregation. This ability to pursue a claim on this basis should serve to

reduce the gender pay gap over time. The law is very recent so it is difficult to know

how the courts and employment tribunals will deal with cases brought under s71 of

the Act. However, there is no six-year back pay limitation period for compensation

specified for s71 claims (as there is in other equal pay claims) and compensation

could also arguably be widened to include injury to feelings.

In the meantime, the important message is that a lack of a comparator may no longer

be a bar to bringing a claim concerning inequality of pay or conditions.

Material Factor Defence

Another significant change brought in by the Equality Act 2010 was clarification of

the application of the material factor defence. As already seen the case law on the

application of the material factor defence lacked clarity at times and left the parties

somewhat confused about when it applied. If the reason for the inequality of

treatment in terms of pay was the claimant’s sex then the employer had to objectively

justify any differences in pay between men and women by showing a material factor

accounted for the difference The law has now been clarified and an employer can

only justify a pay difference with a "material factor" if the material factor itself does

not directly or indirectly discriminate against women. For example if a particular pay

practice does on the face of it indirectly discriminate against women, then the

employer will need to justify the difference on the basis that it is a proportionate

means of achieving a legitimate aim. The Equality Act 2010 also provides that when

21
there is inequality in pay but the employer's long-term objective is to reduce

inequality between men and women in their terms and conditions (e.g. pension

entitlement) this will always be regarded as a legitimate aim although an employer

would still have to show that a particular practice was a proportionate means of

achieving that aim.

In this context the importance of transparency and monitoring pay systems can be
cv
seen in Hastings v Davisons Solicitors where a female paralegal claimed equal pay

with a male paralegal at the same firm who had been taken on a year after her on a

salary of around £3000 more, with the pay gap being maintained when both their

salaries increased. The employer tried to use the genuine material factor defence

based mainly on differences in the comparator’s (a male paralegal) role to the role of

the claimant, his more substantial prior experience than the claimant and his better fee

performance than her. cvi However, the tribunal rejected the defence noting that the

claimant was as able as the comparator to do the work and that in practice she was

given fewer cases and more cases that did not reach completion. “We conclude that if

the explanation for the disparity in pay is a sham, it matters not whether the true

reason is tainted by sex...The sham or non genuine explanation which is a false one

does not have to be deliberate. It can be unconscious, and this is a matter of fact for

the tribunal to determine. “ cvii The tribunal stated that the problem of unequal pay had

arisen because the company did not have a transparent pay system. cviii This case

exemplifies the importance for companies of monitoring and organising their pay

systems so that they are transparent and fair if they want to avoid equal pay claims.

Secrecy Clauses

22
Under section 77 of the Equality Act 2010 it provided that a term which prevents or

restricts an employee from disclosing or seeking to disclose information about the

terms of his work is unenforceable. cix Secrecy or ‘gagging’ clauses have become
cx
popular amongst employers with the Equal Opportunities Commission finding that

nearly a quarter of employers included such a clause in their employment contracts. cxi

This provision is therefore important as it allows employees more of a chance to

collect important pay-related information to assist them in raising an equal pay

claim. cxii Otherwise an employee may not be aware of the variations in pay in relation

to gender or she may fear disciplinary action for having breached a secrecy clause.

However, the right only applies to a ‘relevant pay disclosure’ which is defined as one

where the purpose of an employee disclosing or receiving the information is to

ascertain whether or to what extent there is a connection between pay and gender. cxiii

This particular aspect of the provision has been criticised because it may be hard to

distinguish whether an employee is actually seeking information in relation to

perceived discrimination against them or not. cxiv An employer may not be certain as

to the employee’s intentions if they do not expressly state them. Therefore this could

cause confusion for an employer who may be uncertain as to whether or not the

employee is protected by section 77. This negative aspect was most likely not

intended by Parliament. However, it highlights another issue with the legislation that

will need clarification by the employment tribunals and courts.

Gender pay gap reporting

The Equality Act 2010 had contained a provision under section 78 which had required

employers with over 250 employees to publish information relating to the pay of their

employees to determine if there are any differences between the pay for men and

women. However, the Government announced in December 2010 that it would not

23
implement the gender pay reporting measures while it is working with business to

encourage the publication of equality workforce data on a voluntary basis.

Organisations are being encouraged to voluntarily report on the pay gap between the

level of pay between male and female employees. The Government does not intend to

review this voluntary arrangement until 2013 at the earliest. They will then decide

whether publication by employers of gender pay gap information will become

mandatory. cxv It is clear that the provision will only be brought back in if voluntary

disclosure proves to be unsuccessful. cxvi The Coalition Government are not taking a

strong stance with regard to tackling the gender pay gap through encouraging

transparency. This is perhaps not surprising given the Conservative party’s pro

business stance and cost-cutting agenda. The Equality and Human Rights

Commission (EHRC) has noted that to tackle the gender pay gap it needs to be

identified and measured at an organisational level. cxvii However, they believe that

businesses can voluntarily change and embrace greater transparency on pay without

the need for section 78 being brought back into force. cxviii The Discrimination Law

Review (DLR) is a governmental body that was set up to provide the framework for

reforming equality laws in the UK. They were also against mandatory equal pay

reviews on the basis that they tackle only one cause of the gender pay gap, this being

gender pay discrimination. cxix They recommended instead the spread of good practice,

although there was some criticism of their view given that they had in reaching it

ignored clear evidence of the ineffectiveness of voluntary measures. cxx It is clear that

because of the current views of the Government and independent statutory bodies,

such as the EHRC, gender pay reporting will remain voluntary for the foreseeable

future and there is some indication that some companies have already decided to carry

out voluntary reporting. Employers are now more appreciative of the need to tackle

24
equal pay because shareholders, consumers and employees are increasingly more
cxxi
selective when choosing companies to contract or deal with and some of the more

progressive companies in the UK are already carrying out pay audits and adopting the

Equal Opportunities Commission’s model.cxxiii HBOS is an interesting example as

they are part of the finance sector which is the employment sector that has the largest

gender pay gap in the UK. However, HBOS have been carrying out equal pay

reviews since 2003. These audits had shown that although they had no pay bias

against women they did find that they employed fewer women than men in higher-

paid specialist or senior roles. cxxiv HBOS took the findings from their audit and

formulated a plan to tackle equal pay. cxxv It demonstrates that a large company can

commit to tackling the gender pay gap and companies may find HBOS’s actions a

helpful model. Particularly, if they are keen to pre-empt the Government making this
cxxvi
review process a legal requirement. However, it is clear only a minority of

companies are reporting voluntarily and the EHRC gathered evidence showing that

‘few private sector companies are taking action to close the gender pay gap.’ cxxvii

Even if section 78 of the Act was enforced, the Fawcett Society have identified that of

the 4.7 million businesses in the UK only around 6000 have more than 250

employees. Thus, around 59% of employees would be unaffected by the provisions if

reintroduced in their current form. cxxviii It is important that in the unlikely event that

this provision is brought into force it should be amended to include businesses with

fewer than 250 employees. A suitable example can be found in Sweden where

businesses with 25 or more employees have to carry out an equality action plan every

three years. This has proved to be successful with a gender pay gap of only 3% in

Sweden for women working in male dominated professions. cxxix

25
The general equality duty in the public sector

The gender pay gap varies between the public and private sectors and one notable

difference between them is that the gender equality duty that was introduced for

public sector organisations in 2007. However before that the disability equality duty

came into force under the Equality Act 2006 and the racial equality duty even earlier
cxxx
in 2001. These duties were introduced in a bid to tackle discrimination in public

sector organisations and it required them to promote equality and not just avoid

discrimination. It also shifted the burden of taking action against discrimination from

individuals to organisations. cxxxi This has now been replaced by a new more general

duty under the Equality Act 2010 which extends to all grounds of discrimination and

provides that a public authority must have due regard to: ...eliminate discrimination...

advance equality of opportunity between persons who share a relevant protected

characteristic and persons who do not share it and foster good relations between

persons who share a relevant protected characteristic and persons who do not share it.
cxxxii
This duty came into force under the Equality Act 2010 on 5 April 2011. cxxxiii The

Act also allows for the creation of what are known as "specific duties" to be placed on

public authorities under sections 153-155 of the 2010 Act. These duties help those

bodies to fulfil their responsibilities under the general duty. Equality Duty means

public authorities need to be proactive. Although the public sector now has more of a

specific duty in relation to equality than the private sector, criticism has been raised in

the past over the wording of the public sector duties. The duty uses the phrase to have

‘due regard’ which suggests that an authority is only required to consider the need to

eliminate pay discrimination rather than actually taking action to eliminate it. cxxxiv

However, specific duties were introduced in the UK which required all listed public

bodies to produce a gender equality scheme that informs how they will fulfil both the

26
general duty and the specific duties. cxxxv All public authorities in Scotland are subject

to the general duty, but only some public authorities (for example, the Scottish

Government, Local Authorities, Health Boards etc) are subject to the specific duties.

However, the Scottish Government have decided to postpone its operation until later

in 2011. cxxxvi The Scottish specific duties will include a requirement for listed public

bodies with 150 or more employees to publish an equal pay policy statement and

report on it every three years. cxxxvii The specific duties cxxxviii

do appear clear in their

aim to tackle the gender pay gap by requiring public authorities to report on it and
cxxxix
provide statistics to back it up. However, the impact of this requirement is

unlikely to be significant unless the type of data to be reported is more clearly

specified and the duty to provide it can be enforced. The exclusion of public bodies

with less than 150 employees from undertaking the specific duties should be

overturned as an organisation should not be permitted to be less equality minded just

because it is smaller. cxl

Representative Actions

A criticism of the current legislation is that requires an individual person to bring a

claim under the Act rather than a group of claimants who are all affected in the same

or similar way by inequal pay. This has led to calls for the Government to introduce

representative actions. Representative (the term used in the UK) or class actions

(used in the US) are essentially the same and can be taken where a group of people

with the same common legal interest collectively bring a claim to a tribunal or court.

The Equality Act 2010 made no provision for representative actions despite the fact

that they would assist in equal pay claims by reducing the number of cases brought

and therefore reduce the burden on employment tribunals, employers and

27
claimants. cxlii Representative actions are not common in the UK and particularly not

in employment law as they are still thought of as a feature of the American legal

system. Their implementation in Europe has been frustrated by traditional legal

systems in member states that are based on individual rights. cxliii There seems to be a

consensus that representative actions should be introduced but, it has been regarded as

“one of the least controversial areas for potential reform.” cxliv Why has it not been

done then if it is not controversial? The strongest argument for their introduction into

UK equal pay law relates to the recent mass of claims arising from changes to

payment systems in the health and local government sectors. It seems incredible that

where thousands of employees are employed by the same organisation and are

affected in the same way in terms of inequality of pay any claim must still be brought

on an individual basis. There are examples of large group actions in the public sector

where employees have had to ‘opt in’ to be included as a claimant. However, this can

be a lengthy process with claimants having to wait on the outcome of test cases. cxlv It

has been suggested that representative actions should be introduced on an opt-out

basis whereby every woman would be included as a claimant unless she specifically

opted out. cxlvi Despite clear support for the introduction of representative actions,

there has been no indication that the Government intends to introduce them in the near

future. One commentator raised the question of who would bring a representative

action. Would it be bodies such as the EHRC, trade unions or other interested

organisations? If it was a trade union would it be required to bring a representative

action on behalf of all the employees affected by inequality of pay and not just on
cxlvii
behalf of those employees who are members of the union? There is nothing to

stop a lawyer bringing a representative claim and where this happened only those

persons who signed up with him and agreed to pay his costs would be represented. It

28
has been argued that despite the obvious benefits of class or representative actions

they may be difficult to implement. This is particularly true when an employer brings

forward a material factor defence as this involves consideration of the ‘personal

equation’ between a claimant and her comparator. Differences in the length of service

or the quality of work undertaken by male and female comparators may not be able to

be accounted for if a case was not heard on an individual basis. cxlviii

Conclusion

The objectives of the equal pay provisions of the Equality Act 2010 were identified in

the EHRC code of practice as addressing the following points: “ the full-time

gender pay gap has narrowed since 1975 when equal pay legislation first came

into force but there remains a gap of over 16 per cent between women’s and

men’s pay.” Historically, women have often been paid less than men for doing

the same or equivalent work and this inequality has persisted in some areas.

The Act’s provisions on equal pay and sex discrimination are intended to

ensure that pay and other employment terms are determined without sex

discrimination or bias. “ (see note 5)

The Act introduced some new provisions that were intended to be more suitable than

previous legislative measures for reducing the gender pay gap. The introduction of

the hypothetical comparator will get over some of the evidential hurdles faced by

some claimant in these cases most notably those that are subject to occupational

segregation. The changes to the material factor defence, while narrowing the

circumstances it can be used by employers, should make it more equitable in terms of

proving an equal pay claim. It is too early to know the impact of removal of the

secrecy clauses from employment situations but, it can only increase transparency in

29
terms of pay systems and allow people to discuss issues concerning pay more freely.

The downside might be more equal pay claims where employers are unwilling to

address inequalities in pay.

However, many ideas and recommendations for improving equal pay legislation that

have been suggested in the past were not introduced. For example the continued

operation of the individualistic nature of the employment law claims in this context

(and refusal to allow representative actions) is likely to limit the impact that the

legislation will have on efforts to close the gender pay gap. However the European

Commission recently invited comments on their proposal to introduce legislation

cxlix
which will provide a European approach to collective action. If this receives a

favourable response from member states it could lead to changes in the law in the UK.

The Coalition Government has backtracked somewhat on the commitments in the

Equality Act to deal with the pay gap. Most notably the removal of the legal

requirement for employers to undertake equality audits.

To underline the importance of the issue of the Gender Pay Gap a recent reported

statistic highlighted that women are severely disadvantaged due to it. An average

woman working full-time from the age of 18-59 is estimated to lose out on £361,000

over the course of her working life compared to an equivalent male. cl This is clearly a

significant difference in pay and it can be seen that the UK still has a long way to go

to address the issue of equal pay for men and women.

The new general equality duty in the public sector will be of assistance in removing

inequality in pay. However, there is a large pay gap in the private sector which will

not be addressed by this. Accordingly the Government should look at extending such

a duty to the private sector. One commentator noted that: ‘...there is a strong

argument for extending the proactive equal pay duty to the private sector.’ cli She

30
concluded that the existence of a ‘two tier system’ with different rights for public and

private sector employees was irrational with those in the private sector not having

their rights to equal pay fulfilled unless they could afford to raise an expensive and

unpredictable equal pay claim. clii

The following quote highlights the present position and the challenges ahead: “even

though legislation on implementing equal pay has been in place for 40 years, the

gender pay gap in Britain remains among the highest in the European Union. We still

have a shocking gender pay gap of 15.5% that hurts women, society and the

economy. Removing barriers to women working in occupations traditionally done by

men and increasing women's participation in the labour market could be worth

between £15 and £23 Billion or 1.3 to 2% of GDP. “ cliii Interestingly, the position in

the United States is considerably worse. In 1996 women in the US only earned an

average of 59% of the wages that men earned. However, by 2008 (although the

position had improved) women still only earned an average of 77% of men's wages.
cliv
clv
A Consultation on Modern Workplaces was published on May 16, 2011 which

made clear that legislation was the route by which a number of coalition agreement

commitments will be implemented. This covers further steps to tackle the gender pay

gap. The equal pay proposals are designed to ensure employers who have breached

the law take appropriate action to rectify the problem. This would be achieved by

requiring Employment Tribunals that have decided an employer has discriminated in

contractual or non-contractual pay matters relating to his employees to order them to

conduct a pay audit, unless the tribunal is satisfied it would not be productive to do

so. clvi If this change is implemented it will improve things but the gender pay gap

cannot and will not be closed until more is done to deal with the underlying issues.

31
i
Now Equality Act 2010
ii
BBC News. Gender pay gap progress ‘grinding to a halt’ 11 Oct 2010
http://www.bbc.co.uk/news/uk-11511714
iii
Allan K ‘Equal pay not likely for women till 2067, says research’ The Guardian (19 Aug 2010)
http://www.guardian.co.uk/uk/2010/aug/19/equal-pay-women-2057?INTCMP=SRCH
iv
http:/www. equalityhumantrights.com/legal-and-policy/equality-act/
v
Equality and Human Rights Commission, Equality Act 2010 Code of Practice on Equal pay
www.equalityhumanrights.com
vi
Fawcett Society (2010) Coalition plans around Equality Act 'Endorse Pay Gap '
www.fawcettsociety.org.uk

vii
Joint Committee on Human Rights of the Institute of Employment Rights
viii
Aileen McColgan, Institute of Employment Rights, 8 December 2010 paragraphs 24 – 30 at para. 24
ix
Bradley, A Men's Work, Women's Work: A Sociological History of the Sexual Division of Labour in
Employment (Feminist Perspectives) (1989) Polity Press
x
M Connolly, Townshend-Smith on Discrimination Law: Text, Cases and Materials 2nd edition,
(2004) Cavendish Publishing, London, p. 42

xi
Hakim, C Occupational segregation: a comparative study of Britain, the United States and other
countries. (1979) Research paper, No.9 Department of Employment should there be a reference to a
website? Couldn’t find one

xii
Macpherson S Tackling Occupational Segregation in Scotland (2008) Employment Equality Unit
www.scotland.gov.uk
xiii
However, it is still relevant when examining the division between men and women having part time
and full time jobs in the UK and at the level of senior management
xiv
Office for National Statistics (ONS) Focus on gender – working lives 26 Sep 2008
http://www.statistics.gov.uk/cci/nugget.asp?id=1654
xv
Ibid.
xvi
Ibid paragraph 1.1.5
xvii
European Commission. Gender pay gap: What are the causes?
http://ec.europa.eu/social/main.jsp?catId=682&langId=enhttp://ec.europa.eu/social/main.jsp?catId=682
&langId=en
xviii
S Lewis. ‘Restructuring workplace cultures: the ultimate work-family challenge’ Women in
Management Review (2001) Vol. 16 (1) 24
xix
Ibid p. 24

32
xx
Manning, A Petrongolo , B ‘The part-time pay penalty for women in Britain’ The Economic Journal
(2008) Vol. 118 Issue 526 pp 28-51 at p 28
xxi
Ibid p 47
xxii
S Connolly, M Gregory. ‘Moving down: women’s part-time work and occupational change in
Britain 1991-2001’ The Economic Journal (2008) Vol. 118 Issue 526 pp 52-76 at p 52
xxiii
Ibid p. 52
xxiv
Olsen, W et al, ‘The Gender Pay Gap in the UK 1995-2007: Part 2 – Policy-related factors
offsetting women’s low pay in the UK 2004-07’ (2010) GEO pp 4 and 8 www.equalities.gov.uk
xxv
Supra 19 p 52
xxvi
Lewis, S. and Taylor, K. (1996) Evaluating the impact of family-friendly employer policies: a case
study in Lewis, S and Lewis, J. eds. Family Challenge: Rethinking Employment Sage Publications,
London p 26
xxvii
Ibid p. 27
xxviii
S Fredman. ‘Reforming equal pay laws’ Industrial Law Journal (2008) Vol. 37 Part 3 pp 193-218
at p 193
xxix
D Leaker. ‘The Gender Pay Gap in the UK’ Economic & Labour Market Review (2008) Vol. 2 No.
4, pp 19-24 at p 19 see also Proposals for measuring and publishing information on the gender pay gap,
Equality and Human Rights Commission (2010) www.equalityhumanrights.com
xxx
http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Gender_pay_gap_statistics Eurostat
2008 the EU average was estimated at 17.5%
xxxi
‘Statistics’ Close The Gap, Working Paper 4 (2010) Close the Gap is an impartial body that
provides advice about equal pay to employers and trade
unionshttp://www.closethegap.org.uk/component/option,com_docman/Itemid,64/gid,22/task,cat_view/
xxxii
Supra 26 D Leaker p 19
xxxiii
Supra 26 D Leaker
xxxiv
Supra 26 D Leaker

xxxv
Supra 26 D Leaker p. 19
xxxvi
Supra 26 D Leaker p 20
xxxvii
Supra 26 D Leaker p. 24
xxxviii
http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Gender_pay_gap_statistics
xxxix
GEO (2008) Olsen, W Gash, V Grimshaw, D and Vandecasteele L The gender pay gap in the UK:
1995 to 2007
xl
Ibid. p. 4
xli
Ibid. p. 1
xlii
Ibid. p 1
xliii
K Mumford, P Smith The Gender Earnings Gap in Britain, The Manchester School (2007)
Vol. 75 (6) pp 653-672
xlv
Office of National Statistics Focus on gender – working lives 26 Sep 2008
http://www.statistics.gov.uk/cci/nugget.asp?id=1654
xlvi
Ibid.
xlvii
Ibid.
xlviii
Supra 26 p 22
xlix
C Cotton, D Worman. The effect of occupational segregation on the gender pay gap (2005) CIPD
http://www.cipd.co.uk/about/_effect_occ_seg_pay.htm
l
Ibid
li
Ibid
lii
Fawcett Society. ‘Equal Pay: Where Next?’ (2010) www.fawcettsociety.org.uk p.9
liii
Fawcett Society.Equal Pay – The Facts www.fawcettsociety.org.uk
liv
Equal Pay Act 1970, Sex Discrimination Act 1975, Sex Discrimination Act 1986, Employment Act
1989 (ss. 1-7, 9), Equality Act 2006 (ss. 25,25, 33, 43, Part 2, 81, Part 4 and part of Schedule 3)
lv
Steele, I Sex Discrimination and the material factor defence under the Equal Pay Act 1970 and the
Equality Act 2010 (2010) Industrial Law Journal Vol. 39 (3) pp 264-274

33
lvi
Or a hypothetical comparator in limited circumstances under the Equality Act 2010 (considered
below)
lvii
Equality Act 2010 s. 79 (3)
lviii
Equality Act 2010 s. 79 (4)
lix
(1989) IRLR 28
lx
(2002) ICR 956
lxi
Ibid. p. 956
lxii
(1976) ICR 547
lxiii
Ibid p 566 paragraphs 21 and 22
lxiv
(2005) EWCA Civ. 1608
lxv
Ibid.
lxvi
Equality Act 2010 s.65
lxvii
Equality Act 2010 s 65 (2)
lxviii
(1977) QB 852
lxix
Equality Act 2010 s. 65 (4), (5)
lxx
Equality Act 2010 s. 65 (6)
lxxiii
Barber v Guardian Royal Exchange Assurance Group (1991) 1 QB 344
lxxiv
Macarthys Ltd v Smith (1980) IRLR 210
lxxv
Diocese of Hallam Trustee v Connaughton (1996) ICR 860
lxxvi
(2008) IRLR 588
lxxvii
Heavily criticised by the Fawcett Society and UNISON
lxxviii
Steel, I Tracing the Single Source: Choice of Comparators in Equal Pay Claims (2005) Industrial
Law Journal Vol. 34, Issue 4 pp 338 – 344 at p 338
lxxix
(1976) IRLR 198
lxxx
Morris A, Nott S Working Women and the Law – Equality and Discrimination in Theory and
Practice, (1991) Routledge, London p. 70
lxxxi
Supra 7 p 386
lxxxii
Equality Act 2010 s. 80
lxxxiii
Quinnen v Howells (1984) I.C.R. 525
lxxxvii
Previously the equality clause see Glasgow City Council v Marshall (2000) ICR 196
and Redcar & Cleveland BC v Bainbridge & ors; Surtees & ors v Middlesbrough Council CA (2008)
EWCA Civ. 885, CA.
lxxxviii
Equality Act 2010s. 66 (2) (a)
lxxxix
Equality Act 2010s 66 (2) (b)
xc
Equal Pay Act 1970 s.1(3)
xci
Supra 7 p 409
xcii
Keen, S Pre-employment health questions & equal pay’ News Section, New Law Journal, October
2010 pp 1327-1333 at p 1332 look at explanatory notes as well?
xciii
Equality Act 2010 s 69 (1)
xciv
Equality Act 2010 s 69 (4)
xcv
Strathclyde Regional Council v Wallace (1998) 2 WLR 259
xcvi
(2000) ICR 196
xcvii
(2008) EWCA Civ. 885, CA see also Armstrong v Newcastle upon Tyne NHS Hospital Trust (2006)
IRLR 124,
xcviii
Enderby v Frenchay Health Authority and Secretary of State for Health (1993) IRLR 591
xcix
B Perrins et al, Harvey on Industrial Relations and Employment Law (2010) Issue 211, LexisNexis,
at K-19 para 8
c
(1993) IRLR 591
ci
Supra 88
cii
(2006) ICR 218
ciii
(2010) IRLR 277
civ
M Connolly. ‘The gender pay gap, hypothetical comparators and the Equality Act 2010’
Employment Law Bulletin (2011) Issue 101 p 6
cv
22 September 2009, Case nos. 1305947/08 and 1309616/08 M commented on in ‘Genuine material
factor defence fails’ Equal Opportunities Review (2010) Vol. 198, p 32

34
cvi
Ibid Case nos. 1305947/08 and 1309616/08 Paragraph 3
cvii
Ibid Case nos. 1305947/08 and 1309616/08 Paragraph 46
cviii
Ibid Case nos. 1305947/08 and 1309616/08 Paragraph 51
cix
Equality Act 2010 s. 77 (1)
cx
Predecessor to the Equality and Human Rights Commission
cxi
‘Equality Act 2010’ Health & Safety at Work (2010) 16 (9) p 8
cxii
‘Will the Equality Act bring equal pay closer?’ IDS Pay Report (2010) Issue 1059 p12
cxiii
Equality Act 2010 s. 77 (3)
cxiv
Thomas, D ‘Closing the gap’ Employers’ Law (2010) 7 July p 14
cxv
‘EHRC proposals for gender pay reporting’ Equal Opportunities Review (2010) Issue 198, p 16
cxvi
R McDonald, S Buckley. ‘Equal pay’ Employment Law Bulletin (2010) Issue 96 (Apr), 8
cxvii
EHRC. ‘Proposals for promoting greater transparency in the public sector: a consultation on
improving gender equality in the workplace’ EHRC (2009) p. 9
http://www.equalityhumanrights.com/uploaded_files/consultations/gender_pay_consultation.pdf
cxviii
Ibid p. 9
cxix
Supra 25 p. 215
cxx
Supra 25 p. 215
cxxi
It has been identified that what is needed is as a move away from a remedial model to one of
positive obligations imposed on organisations.
cxxiii
R Lewis, S Smee. ‘Closing the gap: Does transparency hold the key to unlocking pay equality?’
(2009) Fawcett Society p. 9 http://www.fawcettsociety.org.uk/?PageID=1022
cxxiv
K Godwin. ‘Equal pay reviews in action’ Equal Opportunities Review (2008) 174, 8
cxxv
Ibid. p. 10
cxxvi
The costs of gender pay reporting and equal pay audits are one of the main arguments against
implementing section 78 – Minster for Equalities, Lynne Featherstone, stated that it may place a
‘burden on business.’ Will the Equality Act bring equal pay closer?’ IDS Pay Report (2010) 1059, 12
cxxvii
Supra 106 p 16
cxxviii
Supra 113 p. 9
cxxix
Supra 114 p. 10
cxxx
By amendment to the Race Relations Act 1976
cxxxi
EHRC. (2010) Background to the public sector duties
http://www.equalityhumanrights.com/advice-and-guidance/public-sector-duties/background-to-the-
public-sector-duties
cxxxii
Equality Act 2010 s. 149
cxxxiii
EHRC. (2010) The new Public Sector Equality Duty
http://www.equalityhumanrights.com/advice-and-guidance/public-sector-duty
cxxxiv
Supra 25 p 213
cxxxv
EHRC. (2010) Gender equality duty http://www.equalityhumanrights.com/advice-and-
guidance/public-sector-duties/what-are-the-public-sector-duties/gender-equality-duty/
cxxxvi
EHRC (2010) Interim advice on the Equality Act Scottish Specific Duties
http://www.equalityhumanrights.com/scotland/scottish-news/interim-advice-on-the-equality-act-
scottish-specific-duties/
cxxxvii
Ibid
cxxxviii
The Equality Act 2010 (Specific Duties) Regulations 2011
cxxxix
At organisational level, relevant information would include sex-specific information on for
example: numbers of employees, categories of employment, duration of employment contracts,
proportions of part-time workers, wage levels, types of jobs, proportions in management positions,
take-up of family leave policies, access to training. This information can be collected analysed by the
company management.
cxl
Ibid.
cxlii
‘Will the Equality Act bring equal pay closer?’ IDS Pay Report (2010) 1059, 13
cxliii
Hodges, C. ‘From class actions to collective redress: a revolution in approach to compensation’
(2009) Civil Justice Quarterly Volume 28 , issue 1 , pp. 41-66
cxliv
Supra 130
cxlv
M Rubenstein. ‘Representative actions and equal pay’ (2008) EOR Issue 174 p 31
cxlvi
Ibid. p. 31
cxlvii
Ibid p. 31
cxlviii
Ibid p. 31

35
 cxlix
Towards a Coherent European Approach to Collective Redress, European Commission SEC
(2011) 173 (Final)
cl
Fawcett Society. ‘Equal Pay: Where Next?’ (2010) p. 9 www.fawcettsociety.org.uk
cli
Supra 25 p 218
clii
Supra 25 p 218
cliii
Fawcett Society (2011) Equal Pay – The Facts www.fawcettsociety.org.uk
cliv
The Wage Gap: A History of Pay Inequity and the Equal Pay Act (2008) Infoplease.com
http://www.infoplease.com/spot/equalpayact1.html#ixzz1RVL3y7Xo. President Obama has vowed to
reduce the wage gap between the genders in the United States.

clv
http://discuss.bis.gov.uk/modernworkplaces/
clvi
The consultation closed on August 8, 2011

36

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