As we’ve mentioned in our previous equal pay blogs, the most difficult – and most expensive – type of equal pay claim comes about when a whole sector of your workforce is made up almost or entirely of one gender (generally women) and it seeks to compare itself with another sector made up entirely of the opposite gender.
Many of you will have heard that Birmingham City Council has had to sell the NEC in order to settle its £1 billon equal pay liabilities, bought about in the most part by its dinner ladies comparing their pay with its dustmen (and similar).
Up and down the country, other public bodies have faced the same problems and private sector employers are not immune either.
What about your business? You are likely to have some roles or areas of your workforce that are (almost) entirely one gender or the other. In factories, it’s the male-dominated shop floor. In law firms, it’s the entirely female secretarial and admin staff. For schools and colleges it’s the male-dominated site maintenance team. The long name for it is occupational gender segregation, but academics tend to use the shorthand ‘gender ghetto’.
The equal pay risks inherent here are, as you may have guessed, the ‘equal value’ claims. You may pay your school cooks the same rate regardless of their gender, and likewise all dustmen get paid the same regardless of sex, but do both groups get paid the same?
The question of whether the work done by a cleaner, carer or cook is ‘worth’ the same (or more) than the work done by a driver, caretaker or dustman is almost impossible to answer objectively. It’s like comparing bananas and socks, and everyone will have their own subjective view on the merits of bananas (and indeed socks). Critically, in the case of female-dominated occupations, I’m going to suggest that our instinctive view of their ‘low value’ is almost certainly influenced by the fact that they are female-dominated occupations, and that women have done them for low pay (or, indeed, without financial reward, in a home setting) for generations. This means that a comparison process – whether done through a JES or an equal value claim, can throw up surprising results.
If the two sets of jobs are found to be equal – what then? Can it be a ‘material factor’ defence for an employer to say, simply, that the going rate for cleaners is less than the going rate for drivers, and that’s it?
Often, no. Sometimes, yes, if you are lucky and can produce robust evidence to prove that the labour market does indeed work in that way (and isn’t just assumed to) and you can show that you would not be able to fill the ‘male’ roles without paying a premium.
But even that’s not the end of the story. Where ‘the market’ is an exploitative market, taking advantage of women and the lack of opportunities that may be available to them, causing wage values to be suppressed, then their equal pay claim could still succeed. The classic example of an exploitative market would be in low-paid, probably minimum wage, work in an area without much economic opportunity. But what about the female City workers who can point to massive average pay gaps? Are assumptions being made during their careers about their aggressiveness, their commitment and their longevity that lead to a market where a woman is seen as worth less than a man?
There are plenty of claims out there, waiting to be brought. If you have roles which are heavily weighted towards one gender or the other – at whatever level of the business – then you need to look closely at your risk, and we’re keen to help you do that.
If you have 250+ employees, we’d love to tell you about our bespoke Gender Pay Gap Audit & Advice service. Just get in touch and we will be happy to explain how we can support you.
Barrister, Menzies Law