Today we will be talking to commercial Litigation solicitor, Abigail Grace Williams.
Abigail qualified as a solicitor in September 2017 and assists both individual and corporate clients in a wide variety of commercial disputes and prides herself in providing honest and pragmatic advice from the outset of her instruction.
Abigail is an avid negotiator and has expertise in the following areas:
- Commercial Contract disputes;
- Debt and Enforcement;
- Construction disputes;
- Employment disputes;
- Intellectual Property matters; and
- Professional Negligence.
Today we will be discussing employment law with Abigail and the recent developments surrounding equal pay between men and women in the workplace.
Abigail welcome to the show.
Thank you, hello.
So first please tell me a little more on the history and current issues surrounding equal pay in the workplace.
The gender pay gap is something that used to be widely accepted within the workplace. The Equal Pay Act 1970 was the first piece of UK legislation which enshrined the right to pay equality between women and men. The Act sets out that an individual can claim equal pay where she or he, when compared with a comparator of the opposite sex, is employed in either similar work, work graded as equivalent within a job evaluation scheme or work of equal value (with reference to the level of skill, knowledge and responsibility).
The Equal Pay Act has subsequently been incorporated into the Equality Act 2010.
These pieces of legislation were brought in to prohibit less favourable treatment between men and women in terms of the conditions of employment, including remuneration. However, despite this year marking the 50th anniversary of the Equal Pay Act, there still appears to be women fighting to be paid the same as their male counterparts.
As a result of this, under the Equality Act 2010 (Gender Pay Information) Regulations 2017, obligations were imposed upon all organisations with 250 employees or more to provide the following:
- the mean pay gap, in other words the difference between the average hourly earnings of men and women);
- the median pay gap. In other words, the difference between the midpoints in the ranges of hourly earnings of men and women;
- how many men and women are in each quartile of the employer’s payroll; and
- the percentages of staff receiving bonuses by gender, and the gender gap on bonuses.
As a result of these Regulations, many organisations were forced to publicise the pay of its highest earners, revealing, what appeared to be, unjustifiable differences which in turn caused complaints from disgruntled female employees.
One example of such a dispute involved the BBC and presenter Samira Ahmed.
Ms Ahmed has recently won her Employment Tribunal claim against the BBC in a dispute over equal pay. Ahmed argued that she was underpaid in comparison to fellow male presenter, Jeremy Vine whilst they were both presenting similar programmes.
Between 2008 and 2018 Vine was paid £3,000 per episode of Points of View shown on BBC One, whilst Ahmed was paid a mere £400 per episode for Newswatch which was shown on BBC Breakfast and the BBC News Channel.
The onus was on the BBC to demonstrate that the difference in pay, between the two presenters, was due to reasons other than sex discrimination and the BBC failed to do so. The Tribunal found that the difference in pay was “striking” in that Vine was paid more than six times that of Ahmed for undertaking very similar work.
The BBC argued that Vine had a greater profile, Points of View reached a larger public audience and that Entertainment and News require different skills from presenters, however this did not persuade the Tribunal that the difference in pay was justified.
The BBC has since commented that it was “unable to call people who had made decisions as far back as 2008 and have long since left the BBC.” It admitted that it’s pay framework, in the past, had not been “transparent and fair enough” and that it had made “significant changes to address this”
It is clearly still the case that women are struggling to obtain equal pay within the workplace, what are the next steps being taken to tackle this issue?
In January of this year, the Equal Pay Bill 2019-20 was introduced as a private members' bill in the House of Lords. The Bill aims to give women who suspect they may be suffering pay discrimination a statutory right to know what a male comparator is being paid, and would also allow tribunals to grant just and equitable extensions of the time limit for bringing an equal pay claim.
Further, it would widen the scope of gender pay gap reporting, extending it to employers with 100 more employees, rather than those with 250 or more as now. The Bill would also introduce mandatory ethnicity pay gap reporting but this is not something I go into detail on within this podcast.
The Bill had its first reading on 28 January 2020. The date for the second reading has not yet been announced and it is not yet known if the government will support the Bill.
The Bill would introduce a statutory right to know about a comparator's pay and was developed by a working committee made up of equal pay and human resources experts.
The research accompanying the Bill revealed that, an astonishing, 40% of people do not know that women have a right to equal pay for work of equal value. Meanwhile, only 36% of people know that women have a legal right to ask male colleagues about their salary if they believe they may be the victim of pay discrimination (note that this is just the right to ask and is different from an obligation on the employer to disclosure this which is what the Equal Pay Bill would bring).
So what do all these developments mean for employers and what should they be doing to ensure that they are not facing any pay discrimination claims?
The case against the BBC really does emphasise the need for employers to ensure that pay frameworks are fair and transparent, particularly with regard to employees providing similar services and who are of equal experience and skill.
If an employer is concerned that they may be leaving themselves at risk of a potential equal pay claim, employers should compare any terms in the contract of employment for the employees they are concerned about with the equivalent terms in a comparator’s contract. A comparator is an employee of the opposite sex, doing similar work of equal value.
An employer may defend a claim if they show that the reason for the difference is due to a genuine factor and not based on the sex of the employee. As such, employers must ensure that there are such genuine reasons if any pay discrepancy is discovered.
Further, employers should bear in mind that the equal terms can cover all aspects of pay and benefits, including:
- basic pay;
- overtime rates;
- performance related benefits;
- hours of work;
- access to pension schemes;
- non-monetary terms; and
- annual leave entitlements.
Therefore, all these elements must be considered in any comparison exercise.
Employers must further be aware that, since 1 October 2014, employers who lose equal pay claims could be forced to conduct an equal pay audit and publish the results. This could subsequently lead to further claims being brought by employees and it is therefore essential that employers ensure that they are not leaving themselves at risk of any potential equal pay disputes.
Thank you for your time Abigail, how can someone make contact with you should they wish for your assistance in a potential equal pay dispute?