Q
118Mr.
Boswell: Thank you. My second question is a bit more of a
structural one. It struck me when I read the Bill that the attempt is
to bring together all the concepts of equality in one single process,
in one single house. In the interests of legal clarity and better
enforceability, I have no difficulty with
that. The
one anomaly, which the Fawcett Society dealt with in response to the
Green Paper, is the continuing inconsistency between the provisions of
the Equal Pay Act and the Sex Discrimination Act. I want to unpack that
a bit for the Committee. Is your concern about what might be termed the
legal tidy-mindedness of the Bill, in the sense that it would be better
to have a one-stop shop for everything—it is all expressed in
one Bill but in different provisions? Is there a formal
objection? The
second possibility is that there are effects on what might be termed
the litigation enforcement role in relation to discrimination; that is,
you can have a different regime for pay and there can be breaches
there, and for advertising and employment law, which could be a
separate issue. Thirdly, is there a material issue about what actually
happens in the delivery of gender pay
equality? If
I could just add a loop to that, to complicate it further, I know that
the Fawcett Society has gone on about the equal treatment amendment
directive, which deals with having no comparator, or a hypothetical
comparator. Could you unpack some of those issues? If we are to do a
once-in-a-lifetime job, ought we to be doing more than we are, and, if
so, how do we do
it? Katherine
Rake: The Fawcett Society always asks for more, of
course, because we are very impatient with the rate of change in
achieving gender equality in respect of this issue and others, but you
put your finger on an important point. There has always been a dual
track in legislation with the 1970 and 1975 Acts. Obviously, tearing up
the Equal Pay Act is a very tricky thing to do politically, especially
a year in advance of its
anniversary—
Q
119Mr.
Boswell: If I might interpose for a moment, I think that
one of the arguments is that, because an implied contract is built in,
it gives greater
protection. Katherine
Rake: Yes, it does on some levels, but that is not to
say that you could not write broader legislation that would maintain
the protection but do away with
the contractual basis. We have long argued for the need to look
radically at this legislation. Indeed, the whole tone of equalities
legislation is beginning to change favourably, which is very welcome.
We strongly welcome the new gender duty—the duty on public
bodies actively to promote equality—and we have argued for an
extension of that into private organisations.
That is part
of our argument about the Equal Pay Act. It was designed for its time,
and its life has very much come to an end. Inconsistencies remain
regarding the need for a real comparator in equal pay cases, for
example, and, as I understand it, regarding the current recommendations
on employment tribunals, which are able to make binding recommendations
on all other cases, but not in equal pay cases. That now seems totally
nonsensical, and one thing that we need to do in this and subsequent
legislation is to make sure that the strong contractual protection that
is offered in the Equal Pay Act is maintained, but that we do not
persist with these anomalies that weaken the cases that come through
the courts. We need better cure when they come through court, but we
also need to mirror the positive approach to equality that has happened
with the gender duty, and to make sure that that is in the provisions
on equal pay. That is why we argue that organisations need to prevent
pay discrimination from happening in the first place by using
mechanisms such as audit, which would be a preventive
measure.
Joyce
Gould: The Bill as a whole is, almost by default,
going to raise women’s living standards overall. If you take
each part of the Bill and put them together as a package, I think that
is what you achieve and that is its real value. In terms of some of the
specifics, Katherine mentioned the gender duty that we currently have,
and the Women’s National Commission supports the new equality
duty, but we are concerned. We will continue to argue that, when that
is looked at, which will be in terms of sector, not strands, the gender
duty concept is not lost, because it is terribly important that gender
goes across every strand.
Q
120Mr.
Boswell: Do you think there is a danger of
that? Joyce
Gould: I hope not, but we do not know. There will be
consultation, and, obviously we will play our part by putting our
evidence into the consultation. In fact, we make sure that we maintain
a very strong gender element, because, as I say, it covers every strand
of the areas we are talking about; in every issue, women are involved.
For us, that is terribly important. I see the Bill like that, rather
than as something where I can pick out the differences in terms of
equal pay and sex discrimination. Of course, there are anomalies, which
I am hoping that the Bill will sort out, rather than the anomalies
continuing to exist.
On the
specifics, on equal pay, society has changed from when the Equal Pay
Act came in. We have a different employment environment out there, and
we therefore need different legislation to counter
that. Emma
Stewart: I do not have much to contribute above and
beyond what my colleagues have said. Legislation is not necessarily a
core focus of our organisation, so I will leave that to my colleagues.
In answer to your question on what more the Bill could do, we advocate
assessing the 250 benchmark of the number of employees that an
organisation has to have in order to be open for
an equal pay audit. We advocate looking to reduce that number, because
our understanding is that organisations that have 100-plus employees
often have a dedicated HR resource and therefore should potentially be
able to contribute their experience of auditing. If you do not consider
that, I think you are looking at missing out a huge proportion of
businesses in the UK, because we know that half the people in the UK
are employed in business with under 250
staff.
Q
121John
Mason: I want to continue the point about comparators. You
all seemed quite optimistic, but perhaps I am more pessimistic. Having
been in Glasgow city council for a number of years, I found that
eventually the women home-help workers got to compare themselves with
the men city builders in building services, which was good because it
brought up the women. The council’s problem was that it was
competing with the private sector, which was not operating under the
same bounds. So, you had one company employing men for building at a
higher rate and another company employing women at a lower rate for
home helps. The council ends up in an impossible position. Its answer
has been to chop itself into bits so that it can get round the equal
pay rules in the longer term. I just wonder about this. It is all built
on having a colleague. If organisations or employers are able to split
colleagues off from each other, does that make all of this
useless? Katherine
Rake: The issue of contracted-out services and the
splitting of particular services that used to be within public sector
boundaries but now are run by smaller private organisations is
massively important. That is why the issue around hypothetical
comparators becomes so pressing—you will not have an actual
colleague to compare yourself with. So, if there is a traditional and
historical under-evaluation of women’s work, and it is a public
function that is being done by another organisation, that organisation
should still have a responsibility under the gender duty to promote
equality and to eliminate pay discrimination. Unless you get rid of the
provision that says that you have to have an actual comparator, you
disable that process. That is why it is so critical in the complex
world of contracted-out services to ensure that we get rid of the
anomaly that hampers those equal pay cases being taken. Your argument
is very well made, and it supports even more the need for hypothetical
comparators within equal pay
cases. Joyce
Gould: Equal pay is the only area of discrimination
laws where claimants are not allowed to have a hypothetical comparator.
We are talking about the Equal Pay Act, and the Sex Discrimination Act
is a classic example of the incompatibility between the two Acts. We
feel that because of occupational segregation, if women are to be able
to make that challenge, we have to have hypothetical comparators. I
think—and Emma may agree—that it is particularly
important for part-time workers because who, in reality, are they going
to compare themselves with? The only way in which they will be able to
make a comparison is if they have some criteria from hypothetical
comparators. Therefore, there is a very strong case for them. My
understanding is—and I stand corrected if this is
wrong—that they are permissible under European
law. Emma
Stewart: I agree. It is essential that those
comparators are explored in further detail. With this issue, the devil
will be in the detail of how to determine
the comparisons. Certainly in relation to part-time, and to women coming
back into employment, having been in full-time and then looking to
renegotiate to part-time, we experienced an issue in relation to pro
rata. Part-time is not necessarily fully pro rata to the full-time
equivalent job that may well be done by another member of staff within
that organisation. Explicitly there, we need to be clear that if
part-time is properly pro rata, it means pound for
pound.
Q
122John
Mason: Thank you. My second point concerns the public
sector equality duty where we are asking public authorities to take on
board all the protective characteristics. Is that helpful to
yourselves and the issue that you are talking about, or is it less
relevant? Katherine
Rake: The single duty needs to make sure that it
protects the characteristics of the existing duties in terms of the
specifics that are under the gender duty—that will definitely
need to be carried over into the single duty. Legislatively, there is
no problem in having a single duty. I think that it makes it much
clearer for those organisations. Our concerns come much more from
on-the-ground practice of those bodies that are bound by the duty. We
have certainly had evidence from our work in the criminal justice
system, as elsewhere, that there is a fundamental misunderstanding of
what the duty means. A lot of organisations think that the gender duty
obliges them to treat women and men equally and provide exactly the
same services, when in fact the obligation is to produce circumstances
in which you can produce equality, so that you would have different
treatment in order to get to the same outcome. There is a big process
of education and sharing of best practice that needs to happen among
those agencies that are bound by the duties, which is not happening at
the moment.
The Equality and Human Rights
Commission clearly needs to play a much more active role, both in
identifying where there is not compliance with the existing duties,
which unfortunately affects Whitehall, as it does our local
authorities, but also much more positively to make sure that
organisations learn from each other as to what the duties should be in
practice. I do not think we have any problem with the
legislative framework. The problem is on the ground, and
people’s misunderstanding that this is about men and
women being treated the same, when actually it is about different
treatment in order to get the same outcome. That argument has not
necessarily been
understood. Joyce
Gould: Absolutely. We believe that it is the right
direction to go, but as I said before, we have to be absolutely clear
that we do not lose anything that we currently have with the gender
duty. I do not think that has been examined in the way that it should
have been—to find out what has actually happened on the
ground—and we are trying to negotiate with the EHRC to do some
work for the Women’s National Commission on what has happened in
terms of gender equality on the grounds of how much it has been
complied with, how much awareness there is and so on. I think that will
be very helpful when we get the public sector equality duty in helping
to provide proper guidance and proper awareness measures of what is
expected of the public services when that
happens.
I also think
that, as part of that, there has to be transparency in the way the duty
is going to work so that people can see it working, in the way that
they do not see the gender duty working, except in some areas. That is
important. One
of the consequences of the gender duty—Katherine touched on
it—is that somehow there is the feeling that single-sex
activities are no longer relevant. If there is anything that I would
have liked to see in the Bill, it would have been a bit more strength
and emphasis on giving support to single-sex establishments such as
Rape Crisis to make sure that they do not get closed down, because
there is the feeling that somehow we are into a generic society and
therefore the individual organisations do not
matter. Having
said that about the gender duty, the concept, where it is working, is
extremely good and we absolutely support it. When the Government gave
their evidence to the Committee on the Elimination of Discrimination
Against Women, which they have to do every four years, this was one of
the key points that they made. The panel at the United Nations was
extremely favourable towards the actions the Government have taken and
said that it is a world-class model that they would actually use and
advertise for other countries to use. We have got a basis there. We
have to make sure that it works
well. Emma
Stewart: I endorse those points. I welcome the fact
that it is a very clear and simple way of bringing together a number of
measures. The key will be how to promote best practice and how to
unpack that for a large number of public sector organisations so that
they understand what they can do in practice to implement this, and how
then to measure those opportunities that are put to
them. For
instance, looking at flexible working practices, a large number of
public sector employers have highlighted the fact that they offer
flexible working practices but the take-up within those organisations
needs to be clearly
monitored. In
relation to the socio-economic duty of public sector organisations, in
London we have seen some good examples of that working in practice and
those initiatives need to be better promoted. We know that with some of
the local authorities that we work with in Haringey there is an
emphasis on tackling child poverty, specifically in relation to
tackling inequality for women. There are initiatives looking at
providing services in PCTs and GP surgeries for women who face both
health inequality and poverty to be able to access welfare rights
services. Very practical initiatives, which I think can be promoted,
are very
valuable.
The
Chairman: Two more hon. Members have caught my eye.
Bearing it in mind that we have to keep an eye on the clock, perhaps
answers can be slightly shorter so that they can both get
in.
Q
123Sandra
Osborne: Having worked for Women’s Aid for many
years, I am aware that, under the Sex Discrimination Act 1975, there
was an exemption in relation to employing only women. Baroness Gould,
are you suggesting that that is in question under the new Bill? Would
it be put at risk?
Joyce
Gould: There are provisions about single-sex activity
in respect of education and employment, and I would like to see them
extended to the much more
necessary community-based activities. It cannot be along the lines of,
“We’ve been told that we have to operate generic
fund-raising and so on, so we are terribly sorry but money for your
Rape Crisis or women’s centre is no longer
available.” Local
authorities are using that argument and closing down such centres at a
substantial rate, although, to be fair, I have to say that more money
has gone into Rape Crisis, which has helped it in particular. However,
it has not changed the concept of local authorities and how they
perceive single-sex organisations, which I think are terribly
important. I
have concentrated on women because that is what we do in the
Women’s National Commission, but a number of men are asking for
men-only organisations, particularly health-type organisations, and
they have not been able to get funding for them. That is something we
should look at a little
more.
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