Gender pay gap reporting legislation and heightened awareness around the issue of inequality will indirectly trigger more equal pay claims, according to barrister at Outer Temple Chambers Andrew Short.
Speaking at a recent London HR Connection event in partnership with law firm Bird & Bird, Short, who represents equal pay claimants, explained: “The zeitgeist has changed. A few years ago pay discrimination based on gender was frowned upon and seen as a guideline, but not looked upon as a rule. So, indirectly, I think the gender pay gap will now increase the number of equal pay claims.
“Back in the 1990s there were very few equal pay claims,” he continued. “But now this is one of the biggest areas of claims coming through tribunals.”
Short detailed the main reasons behind employees bringing equal pay claims, pointing out that very few equal pay issues arise from people doing exactly the same job. Instead they often appear when there is no pay scale and jobs are individualised, he said.
One of the main reasons claims are then brought is if two jobs – though different – are of equal value. When representing employees in cases against Birmingham City Council from 2006 to 2017, Short found that the male-dominated job of road digging was paid far higher than other female-dominated jobs at the council.
He explained that pay rates for road diggers had been set decades ago when it was a more difficult, manual job. But today, with machinery making the role simpler, it is no longer of greater value than many other roles. And yet the pay hadn’t been reviewed in line with this.
“Another common factor is when there is a profound gender segregation in roles – this is the most common discrimination that takes place now I think,” Short continued.
Pointing to what he called “the five Cs of carers, cashiers, cooks, cleaners and children”, which are roles often taken by women, Short explained that “if there are different routes for males and females and differences in pay in these routes, then employers need to be able to prove there’s a good reason for it.
“This is often very difficult for employers to justify,” he added.
Another common reason for a claim is when demographics change in roles, he went on. “When a male-dominated industry becomes balanced or slightly less male-dominated they often protect the older employees from changes,” he said.
“When assumptions and generalisations are made this is another issue. Sometimes soft decisions have to be made around pay, as not all job grades can be decided using mathematical proof. But when all decisions point in the direction of supporting one group over the other this is when there’s a problem,” Short added.
Sharing his experience of taking claims against Birmingham City Council, Short told the anecdote of binmen's salaries being justified by the Council because they have to deal with nappies in bins. Some of his clients, he explained, were carers so dealt with nappies daily but were paid much less.
“So, in the case of nappies meaning workers had dirty jobs that warranted higher pay, this was only taken into account for men and was only used as an argument in favour of men not women,” Short explained. “When value judgements go against the grain then this brings claims.”
Short warned that “lots of the UK’s equal pay legislation has come from the EU,” and so there is uncertainty around the future of equal pay claims post-Brexit.
