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Equality at work - decades of legislation, but it is working?

20 September 2016

The gender pay gap, how that widens after having children and general pregnancy related issues have all hit the press recently. The institute of Fiscal Studies published a report highlighting that whilst women on average receive about 18% less pay per hour than men, this wage gap is less when comparing young women, before they become mothers, with their male counterparts. The gap widens consistently after childbirth so that 12 years after, women earn on average 33 % less than their male colleagues. It is not as simple as finding one reason for this disparity and trying to resolve it, the issues are far more complex, but employers will not want to lose their female talent.

Traditional pay systems which advocate an annual pay increase may mean that women who take time out or a career break will miss out on incremental pay rises, which continues to have a knock on effect for years after a mother returns to work. There is also what is known as the “sticky floor phenomenon” by which women sometimes limit their own progression, due to a lack of self-belief which will, in some cases, translate into a decision to leave. The reasons for this may be in part the environment in which pregnant women find themselves and clearly, if employers value that talent then they need to change that environment. A report by the Commons Women and Equalities Committee indicates that the number of women forced out of work when pregnant because of discrimination has doubled over the past decade to 54,000. It also suggests that 10% of mothers are either dismissed, singled out for redundancy or leave work because of poor treatment. This will clearly also have an effect on mothers who remain in the workplace but who may simply choose to vote with their feet.

These issues are faced by pregnant women and returning mothers against a backdrop where access to justice has been made more difficult. The introduction of fees in the employment tribunal in 2013 has proved a controversial issue. Tribunal statistics have shown a dramatic decrease in the numbers of claims being made. What the statistics alone do not tell us however, is whether this shows the fees are succeeding in reducing unmeritorious claims, or whether it is also making it too difficult for those with meritorious claims, but who find themselves in a precarious financial state having just lost their job, to proceed with their claim.

The recent survey carried out by the Equal Opportunities Review seems to indicate that, at least in relation to discrimination claims, the fees are deterring more than just the unmeritorious claims. Their analysis shows a marked drop in the number of compensation awards being made at Tribunal which suggests a decline in meritorious claims. Interestingly however, for those who are able to proceed with their claims and take them to Tribunal, the average level of award is increasing. Having less claims does of course benefit employers, but should not be the driver. Most employers would say that talent, whether female or male, needs to be retained.

In order to address these issues a more cohesive approach needs to be taken. It is not enough to simply look at pay in isolation of other factors, such as attitudes to pregnancy in the workplace. In light of this, it is difficult to envisage how the new gender pay provisions due to take effect next year, will do much to alleviate these issues. Reporting on gender pay in the bald way proposed leaves the key element of context out, and as we are all aware statistics alone only tell part of the story. Reporting statistics will not change attitudes, but creating an environment where female talent wants to stay with your organisation will.

For further information, please contact David Green on +44 (0)20 7203 5066 or david.green@crsblaw.com