Last week, Lynne Featherstone MP (Parliamentary Under Secretary for equalities) delivered a statement setting out the Government proposal for imposing equal pay audits on businesses that lose an “equal pay” case at tribunal. Written ministerial statement here.
In fact, the proposal refers to claims concerning both contractual and non-contractual pay which will take the tribunal’s power wider than claims under the equal pay provisions of the Equality Act (Part 5, Chapter 3). This is because the equal pay provisions of the Act deal with contractual pay only (as indeed did the preceding Equal Pay Act 1970), whereas discrimination in relation to non-contractual pay falls to be dealt with by the general discrimination provisions in Part 5. The wider view is being taken as the Government acknowledges that discretionary pay forms a significant part of the problem.
The proposal is intended to replace the provisions of s78 of the Equality Act 2010 which was the subject of much debate during the Equality Bill’s passage though parliament. The clause, had it been enacted, would have allowed for compulsory pay audits of businesses with more than 250 employees, although had Labour remained in power it would not have come into force until at least 2013.
The Conservatives tabled an amendment more than once that would have, surprise surprise, imposed an audit on an employer who lost an equal pay case (see Hansard here for the proposed amendment and the debate that ensued from Column 1372) The Liberal Democrats fought for compulsory pay gap information for all businesses (albeit bizarrely only for those with more than 100 employees). Lynne Feathersone’s own blog from 2010, covering the Bill’s progress and the need for effective measures to narrow the gender pay gap does lead me to suspect that her announcement of the proposed new measure last week may have been made through gritted teeth.
I am sure I am not the only one who finds it deeply disturbing that some business groups responded to the announcement with complaints that this would increase the burden on businesses. Businesses who take seriously their responsibility to pay men and women equally (which is, after all, no more than the law has required for 37 years) will have no more to fear than ever they did. Not only that, Tribunals will have some discretion to override the obligation to order an audit if the employer already has transparent pay practices.
I was also deeply saddened that the (probably accurate) realistic predicted outcome of the measure by many employment law commentators would be the settlement of more equal pay claims rather than a reduction in claims brought in the first place.
All in all, the proposal amounts to little more than a tiny sticking plaster to be placed over an apparent surface wound that rots deep within (apologies to anyone eating as they read this).
To quote Lynne Featherstone (alas, from her pre-Government blog post, rather than her Ministerial Statement) … “we are sick of waiting”.