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The UK’s oldest equal pay law was guided through parliament by Barbara Castle as one of the last acts of the outgoing Labour government in 1970. The then employment minister had been angered into championing the legislation following a walk-out by women sewing machinists at the Ford car plant in Dagenham a couple of years earlier. They had discovered that men doing the same work as them, making car seats for Cortinas and Zephyrs, were being paid 15 per cent more.
The Equal Pay Act 1970 finally came into force under another Labour government on 29 December 1975, with employers having been given the intervening period to adjust to its provisions. For many of them, though, not even 40 years has been enough, and overall the gender pay gap remains a gaping chasm. The Fawcett Society reckons that women working full time earn on average 17 per cent less than men, while part-time women workers earn 37 per cent less. Some of the worst offenders are public sector employers: the public service union Unison is currently representing some 40,000 low-paid women in equal-pay claims.
In April another piece of landmark anti-discrimination legislation entered the statute books. The Equality Bill finally became law in the ‘wash-up’ of bills passed in the dying days of the last parliament, pushed forward by another Labour champion of women’s rights, Harriet Harman. The much-anticipated new legislation was seen as an opportunity to address some of the deficiencies of the earlier law that was struggling to deliver on the promise of its title.
‘Nobody takes any notice of the Equal Pay Act. The simple truth is there’s never enough money,’ says Sue (not her real name), a 53-year-old home care worker. For almost two decades Sue has worked for Cumbria County Council helping the old and vulnerable in their homes. She is one of 1,600 low-paid women to have pursued equal-pay claims against the council through Unison. She recently received more than £30,000 in compensation.
While happy with the pay-out, Sue makes the point that the sum doesn’t represent ‘equal pay’. If there was genuine equality with her male council workers, how much should she have been paid? ‘Double that,’ she reckons, adding that her union had to fight ‘tooth and nail’ on her behalf to get her what she did receive.
Does Sue feel that the Equal Pay Act has made life any fairer? ‘Not really. My feeling is the council gets away with what they can. They know they have a group of women like us, loyal and who want to do their best for the vulnerable in the community, and who are for those reasons unwilling to strike. They take us for granted. We still don’t get paid time-and-a-half or double-time like the mainly male workers whose jobs have been contracted out.’
Although the first equal pay legislation took effect in 1975, it wasn’t until 1995 that legal action by Cleveland ‘dinner ladies’ kick-started a wave of settlements and equal-pay cases being brought through the courts. In the Cleveland case 1,500 women shared a £5 million payout. After that, the 1997 ‘single status agreement’ was constructed to abolish pay inequalities through pay and grading reviews in each local authority. A similar agreement in the NHS called ‘Agenda for Change’ was reached in 2004. But as negotiations dragged on interminably and councils pleaded poverty, women turned to lawyers because they felt their claims were either being stalled or under-settled.
Good business for lawyers
There is no legal aid for cases involving employment tribunals but lawyers took numerous equal-pay cases on ‘no win, no fee’ deals. It proved a lucrative income stream, with lawyers sometimes taking 30 per cent of any payouts – and it was growing fast. In 2003 such cases comprised less than 1 per cent of business dealt with in employment tribunals. Within five years, though, the Equality and Human Rights Commission (EHRC) was warning that equal-pay cases could ‘crash’ the courts, with as many as 150,000 women entitled to compensation from local authorities and the NHS. The Equal Pay Act was ‘past its sell-by date’, said Trevor Phillips, chairman of the EHRC.
Much of the ire of a coalition of equality campaigners, trade unionists and politicians was directed at Stefan Cross, a Newcastle-based solicitor, who acted for tens of thousands of low-paid women. ‘What he’s doing could mean that industrial relations in this country will be torn up,’ Brian Strutton, a leading official of the 600,000-strong GMB union, told the press. ‘It will be good for lawyers, but millions of people won’t have a union which can represent them.’
By contrast Cross, a former union lawyer who acted for the Cleveland dinner ladies, accused his former comrades of selling out their women members. Speaking to Cross earlier this year, I asked him how he responded to accusations that he was trashing the negotiations between unions and employers by pursuing individual cases in this way. ‘Total tosh,’ he replied, arguing that the ‘fact of the matter’ was that the unions were ‘neglecting their role’.
‘The men get preferential treatment to the women even in the new arrangements,’ he insisted. ‘The women’s interests get sidelined. The trade unions speak with forked tongue on these issues. They claim to espouse issues to do with equality – however, they seek to protect the status quo.’
The appeal judges seemed to agree with Cross, who still acts for 30,000 low-paid women, in a crucial case that came before them in 2008. They upheld an employment tribunal’s finding that the GMB union ‘rushed headlong’ into an ‘ill-considered back-pay deal’ in one case (Allen v GMB) and ‘accepted too readily the council’s plea of poverty’. The judges agreed that the GMB had indirectly discriminated against 26 female workers who had been paid less than their male counterparts when agreeing backdated pay deals. In that case, home carers (a female-dominated job) were on £5.88 an hour whereas a gardener on the same grade (a male-dominated job) was on £8.23 due to a 40 per cent bonus.
Some critics say that statistics measuring the gender gap between men and women are a hopelessly crude measure of progress, not least because they ignore the decision by women to choose lower paid jobs because such roles better suit their lives. The Fawcett Society disagrees, arguing instead that the main reason for the gap is explained by ‘paying women less than men for doing the same jobs or work of equal values’. The other big reasons are what they call the ‘motherhood penalty’ and the undervaluing of traditional ‘women’s work’, such as cleaning, catering and caring.
Problem with the Act
So will the Equality Act narrow the gap? ‘There are measures that will highlight the issues of equal pay but they won’t deal with the systemic problems of equal pay,’ says Unison’s legal director, Bronwyn McKenna. For example, the new legislation will promote transparency and will require public sector bodies with 150 or more staff to publish their gender pay gap and require the same of private and voluntary sector employers with at least 250 employees. ‘So that would leave about 40 per cent of the workforce not covered,’ she notes. It will also ban pay-secrecy clauses which effectively conceal inequality.
‘Our main problem [with the Act] is with the underlying legal framework, which means that cases just run for an inordinately long amount of time,’ says McKenna. ‘There is huge scope for tactical or time-delaying approaches, which the other side is going to throw at you and which you know aren’t going to succeed.’
She points to a recent successful case on behalf of women working with special needs children, care workers and dinner ladies in Sheffield. They claimed that they had not received bonuses that were being paid to their male comparators, street cleaning workers and gardeners, whose basic was 33.3 per cent and 38 per cent respectively higher than their pay. The women’s success this February also reveals the problem. ‘This case has been running for almost a decade,’ McKenna says. ‘There seems to be no limit to the amount of money that the public sector employer is prepared to throw at these cases.’