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The Gender Equality Duty: A lever for equal pay?

The Gender Equality Duty: A lever for equal pay?. Bronwyn McKenna. Director of Organising and Membership. Overview. bargaining context background to public sector equal pay litigation use of gender equality duty to secure equal pay case studies legislative context. Bargaining context 1/2.

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The Gender Equality Duty: A lever for equal pay?

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  1. The Gender Equality Duty: A lever for equal pay? Bronwyn McKenna Director of Organising and Membership

  2. Overview • bargaining context • background to public sector equal pay litigation • use of gender equality duty to secure equal pay • case studies • legislative context

  3. Bargaining context 1/2 Local Government • 1997 Single status agreement-local pay and grading reviews • 2004-2007 three year pay deal-April 2007 deadline. BUT no government funding • 2008 Local Government Employers research • 49% councils completed pay and grading review • 25% councils in process of implementing • capitalisation in England (£0.5bn) and Wales

  4. Bargaining context 2/2 NHS • 2004 Agenda for Change agreement developed with expert job evaluation advice • 90% of NHS staff’s pay increased • largest increases-cleaners, domestics, health care assistants i.e. predominantly female group • government funding provided to meet costs • Agreement piloted and centrally driven

  5. Public Sector equal pay litigation • 1 in 5 of all ET claims = equal pay claims • 2008 UNISON commenced its 40,000th case • disadvantages of an individual enforcement approach • random effects • delay in hearings of multi-week cases • incidence of appeals • evidence can become matter of archaeology • underlying law not fit for purpose e.g. comparator issues

  6. Scope to use GED to secure equal pay 1/2 General duties directly enforceable by Judicial Review by trade unions and the Equality and Human Rights Commission S76(1) SDA public authority must have due regard to the need to • eliminate unlawful discrimination and harassment; and • promote equality of opportunity between men and women

  7. Scope to use GED to secure equal pay 2/2 Specific duties directly enforceable by EHRC s76B + s76C SDA • public authorities are required to publish a gender equality scheme showing how they intend to fulfill the general and specific duties • to consider the need to have objectives that address the causes of any difference in between the pay of men and women that are related to their sex • to collect and assess information on the effect of policies and practices on male and female staff (Indirect requirement to carry out pay audits?) • to consult stakeholders including trade unions as well as employees • to assess the impact of its policies and practices on gender equality • to conduct reviews of gender equality scheme

  8. How should unions harness the Gender Equality duties? • ensure reps are involved in the development of any Gender equality scheme from an early stage • ensure reps are formally consulted on the scheme • make sure process for gathering information is robust • determine criteria for equality impact assessments • establish union involvement in reviews of progress on equality scheme • insist on pay audits as most effective means of addressing the gender pay gaps • scope to use GED in equal pay claims? • to obtain information • to highlight inequalities • pleadings in case

  9. Case study-NHS PFI contract • PFI contract for soft facilities management with information extended and value of contract increased • equality scheme in place but no • equality impact assessment; and • no equality specifications included in contract • legacy commissions wrote to employer asking for equality scheme and EIA • commitment to carry out EIA at late stage • route of implementation of Agenda for Change speeded up • commitment to apply Agenda for Change for future contracts

  10. Legislative context Equality Bill August 2007 Discrimination Law Review proposed a single equality duty encompassing race, sex and disability. Some authorities exempted June 2008 Announcement of Government response to consultation expected

  11. The Future for the Equality Duties • The Government commitment on Equality Bill: • “A single equality duty…will require public bodies to consider the diverse needs and requirements of their workforce………” • Trade Unions want: • A strong public sector duty across all grounds • Specific public sector obligations covering procurement • Extension of the duties to the public and private sectors

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