Memorandum submitted by UNISON (E 04)

 

 

 

1. Introduction

1.1 UNISON is Britain's largest public sector union with more than 1.3 million members working in the public services, for private contractors providing public services and in the essential utilities. Over 70% of our members are women; many are low paid or work part time.

 

1.2 UNISON has welcomed the introduction of the Equality Bill: we have long campaigned for harmonised and comprehensive equality legislation. Current equality law is in need of reform and updating. In particular equal pay legislation is no longer fit for purpose.

 

 

1.3 UNISON priorities for an Equality Bill are:

Equal pay - measures to close the gender pay gap and to reform the failures of equal pay law;

An enhanced and comprehensive public sector duty across all strands;

Procurement - public spending as a lever for public good.

 

1.4 There are many measures in the Bill which we welcome. However we remain concerned that the proposals will not go far enough to close the gender pay gap. Whilst the commitment to transparency is welcome, in reality the proposals will not lead to full pay transparency and many workers will be excluded from the limited measures proposed. Pursuing an equal pay case to tribunal is a long complex and stressful process which rarely delivers equal pay for women. UNISON believes the Equality Bill presents an opportunity to address these problems.

 

 

1.5 The Gender Pay Gap proposals - summary

UNISON is concerned that measures on pay gap reporting will remain voluntary for 4 more years, that a large number of workers will be excluded from the provisions, and that the Bill does not address some of the major failings of current equal pay law. We argue for the introduction into equal pay law of the right to cite hypothetical comparators, for trade unions and the Equality and Human Rights Commission to be able to bring representative actions; and for clarification of arrangements for collective bargaining on equal pay.

 


2. Equal pay

2.1 The provisions to enable full pay transparency are limited and therefore disappointing. The only way for women to fully understand how their pay compares with other workers is for full transparency via pay audits. In the private sector, despite almost 40 years of equal pay legislation, employers have another 4 years to provide some limited pay transparency. Yet evidence suggests that the voluntary approach has not and will not work. Last year there was even a small increase in the gender pay gap.

 

2.2 Further approximately 50% of all private sector workers are employed by businesses with less than 250 employees. Not even minimum rights to transparency will be available to them. Likewise for those working in small public sector bodies with less than 150 employees.

 

2.3 It is right that pay secrecy clauses should be banned and this proposal is welcome although most employees are not currently affected by pay secrecy clauses.

 

2.4 The current system puts the onus on the individual woman to bring a case after she has experienced discrimination. This means that, rather than operating to protect women from discrimination, the current law requires a woman to first be able to identify that she is being paid unfairly, and then have the resources and courage to build a case and source the support necessary to take action.

 

2.5 Those women who do go to law to seek equal pay are likely to be involved in lengthy, dated and complex legislation. There is a need for a more fundamental reform of equal pay law. The EU Equal Treatment Directive allows hypothetical comparators. The Bill should therefore allow the use of hypothetical comparators in discrimination cases where not actual comparator exists. Currently it is difficult for women in highly gender segregated employment to point to an actual male comparator.

 

2.6 If she does bring a case it could take up to 10 years to conclude under an employment tribunal system that is creaking under the weight of cases and, even then, it will not benefit her colleagues facing the same or similar discrimination. There are currently tens of thousands of equal pay cases waiting in the tribunal system, and last year only 678 equal pay cases were upheld at employment tribunal.

 

3. Mandatory Pay Audits

3.1 If real progress is to be made in ending pay discrimination then the onus must be put on employers to ensure that they are actively complying with the law. Mandatory pay audits should be introduced for all employers to identify any disparity in pay between men and women doing work of equal value and produce action plans to rectify the anomalies. A pay audit involves the following three steps: comparing the pay of women and men doing equivalent work; investigating the causes of any pay gap; and closing any gap in pay which cannot be explained by factors other than the employee's gender. In this way any woman will be able to identify if she is being fairly and legally paid.

 

3.2 There is substantial support for equal pay audits as an effective means of tackling unequal pay:

The statutory Code of Practice on Equal Pay recommends equal pay audits as "the most appropriate method of ensuring that a pay system delivers pay free from sex bias"

The former Equal Opportunities Commission's Equal Pay Taskforce recommended in 2001 that a statutory requirement should be placed on employers to carry out equal pay audits

The voluntary approach to equal pay audits is not working: Recent research from the Equality and Human Rights Commission (EHRC) shows that only 17% of employers have completed an equal pay audit. There has been just a 5% increase in the number of employers conducting audits since 2005.

Equal pay audits work for business: EHRC and IRS research shows the majority of organisations that have conducted an equal pay audit have either repeated or intend to repeat the process.

 

4. Representative actions

4.1 The Equality Bill should enable groups of employees to take actions in discrimination cases, whereby trade unions or the EHRC bring a claim on behalf of identifiable groups of women in opt-out multi-party actions.

 

4.2 Much pay discrimination is systemic and collectively affects a group of women, yet courts still have to hear each case individually rather than hearing a group of cases together. Each individual woman making her own claim can suffer high emotional and financial costs. As a direct result of this many legitimate pay claims do not progress to court stage. Furthermore, the tribunal process as a whole is unnecessarily protracted and financially burdensome for all parties. Representative actions would ensure that individual women would be less likely to be victimised while ensuring that the process is quicker and cheaper for all parties and would apply to all women affected not just those able to take the case.

 

4.3 Representative actions are advocated by the Civil Justice Council. The proposal is currently under consideration by the Ministry of Justice but it is appropriate that the concept is introduced for equal pay cases via the Equality Bill.

 

5. Hypothetical comparators

5.1 At present women have to point to an actual male colleague who is being paid a higher rate in order to prove they are being discriminated against. This is particularly problematic for women in female dominated occupations or in small organisations. Part of the cause of unequal pay is the low value assigned to occupations with high concentrations of women (so we pay our plumbers more than child carers), so the absence of a male counterpart can prevent some women from making legitimate claims.

 

6. UNISON experience

6.1 UNISON, as the largest union in public services, is currently supporting 44,000 equal pay tribunal claims. We have negotiated settlements worth millions of pounds for our members. Women, who have the assistance of a union, receive their settlement in full without paying a penny in legal fees. This contrasts with women assisted by No Win No Fee lawyers (NWNF) who can lose up to 30% of their damages.

 

6.2 However, we believe the best way to achieve equal pay for women is to reach negotiated collective settlements with employers - agreed by our members. Where employers will not negotiate, or negotiations stall, UNISON does and will use litigation. But our experience shows that bargaining is quicker and more effective than litigation.

 

6.3 Unfortunately, two recent decisions of the higher courts mean that employers are running shy of reaching any deal with unions that could at any point in the future be challenged as discriminatory.

 

Bainbridge v Redcar & Cleveland BC; Surtees V Middlesbrough BC

This Court of Appeal decision found that pay protection arrangements made by two local authorities in the context of the introduction of Single Status were discriminatory.

 

6.4 The court agreed that while, in theory, transitional arrangements to cushion the pay of workers facing pay cuts are not wholly unlawful: to continue to protect the pay of male workers at the expense of female claimants is, on the face of it, discriminatory. The councils should have also extended pay protection to women who would have qualified for such protection had they been receiving equal pay at the time that salary protection took effect. Regrettably, the court declined the councils and the EHRC'S request to devise general guidelines to assist councils and unions draw up pay protection schemes.

 

6.5 It had been previously been widely assumed that, in accordance with EOC guidance, protection schemes to cushion the pay of those facing actual pay cuts for up to three years were justifiable. The Court of Appeal decision in Bainbridge now throws this assumption into doubt.

 

6.6 It is not known how many of the protection schemes agreed to date in local government would fall foul of the Bainbridge case. Over 50% of local authorities have implemented Single Status; a significant number of these will have applied the EOC guidance by offering up to three years' protection to typically male-dominated groups without extending protection to female dominated groups. These arrangements are likely to generate fresh Tribunal claims on behalf of women denied the benefit of protection.

 

6.7 In many authorities, the numbers of women potentially entitled to bring protection-related claims will run into the high hundreds if not thousands.

 

6.8 There is a pressing need for clear statutory measures setting the lawful parameters of pay protection schemes. This is not addressed in the Equality Bill.

 

6.9 This, and other recent appellant court decisions, has created great uncertainty around collective agreements negotiated between employer and unions. There is now a risk of challenge to all collective agreements as they almost inevitably involve winners and losers to some degree. This can make employers and unions reticent to enter into a collective agreement to implement equal pay proofed pay systems. Agenda for Change in the NHS was an excellent example of NHS unions and employers working together to improve clinical standards, address workforce training and development needs and deal with pay anomalies. Given the way the law is developing, unions would now be reluctant to enter such agreements and this is as much a problem for employers as unions. It cannot have been the intention of EU law to render collective bargaining virtually impossible. Ultimately many employers will, as a result of the Bainbridge decision, be deterred from acting to end pay inequalities. This effectively rewards poor employment practices and will further delay efforts to close the gender pay gap.

 

6.10 Equality experts have suggested that there may be scope to look again at the precise requirement of EU law and the way in which these have been implemented in the UK.

 

7. UNISON would like to see

Consideration of the unintended effects of EU law on collective bargaining

Clear statutory measures for employers setting out the lawful parameters of pay protection schemes

 

8. Other measures in the Bill

8.1 A Socio-economic duty

The principle of this has to be welcome and the introduction of this measure reflects the complex cross-cutting nature of disadvantage. This new duty reflects a wider social need for fairness. It is right this duty is not linked to other public sector duties. Whilst a welcome principle it is unclear what will happen should an authority not have the will or resources to take action. This duty should complement other duties.

 

8.2 A new equality duty on public bodies

This is a welcome and sensible approach. A single duty across all strands offers simplicity and clarity. It removes the idea that some forms of discrimination or disadvantage are less important than others. We believe it is vital that the specific elements of the duties which spell out what public authorities must do are maintained. We argue that, although the outcomes from the duties are what matter rather than process, the process requirements themselves are also important.

 

8.3 Procurement

The absence of specific legislation requiring equality considerations to be included in public procurement processes remains a problem. Too often contracts are awarded to the lowest bidder and no other factors are taken into account. Public procurement should be a lever for the public good: at present it often is not. This measure could go some way to improving this situation.

 

8.4 Banning age discrimination outside the workplace

8.4.1 This new provision is welcome and long overdue. However we are concerned that some key anomalies will remain:

 

8.4.2 In regards to young workers, UNISON regrets that the Government, rather than using this Bill to end the age discrimination in the National Minimum Wage age bands, has again chosen to grant an exception. UNISON's position remains that workers should be paid the proper rate for the job, and preservation of this discrimination only serves to underline that young workers are valued less than their older colleagues. The Bill also fails to protect those under 18 from discrimination in the provision of goods, facilities and services

 

8.4.3 For older workers, UNISON continues to stress the importance of the difference between the age when a pension is payable, and the age when someone retires. We believe in the need to protect the concept of pensionable age regardless of people being able to work beyond pensionable age.

 

8.4.4 UNISON notes that the Bill reaffirms the continuation of a Normal Retirement Age (NRA) of 65 and the right to request to continue to work beyond that. However UNISON believes that the individual workers should have the right to work beyond the NRA based on their personal circumstances. Under the Bill employers will have to provide no reason for refusing such a request provided they have undertaken the duty to consider six months before the individual's NRA.

 

8.4.5 UNISON believes that service related pay and benefits should continue to be available to motivate staff, reward loyalty and recognise experience. UNISON represents workers in services where the monetary rewards are not great but these are offset to some extent by other more attractive conditions of service such as leave entitlement. We are pleased that the Bill still allows for benefits based on length of service.

 

8.4.6 We welcome that people will be protected from discrimination in the provision of insurance services. With regard to age differences in insurance calculations, we stress that decisions should be based on actuarial evidence rather than assumptions linked to age. The Equality Bill refers to "adequate evidence" and we will be seeking clarity on how this applies.

 

8.5. Positive action

8.5.1 Whilst this proposal has gained a lot of media attention we believe in reality very few candidates are identical. However we do recognize the need to address the chronic under-representation of certain workers in the more senior/managerial positions.

 

8.5.2 We welcome the ability for political parties to seek to address the current imbalance in political representation.

 

8.6. Employment Tribunals

This proposal is long overdue. All too often an individual who wins a case at an Employment Tribunal finds that, although they may be awarded compensation, nothing changes in the workplace to prevent a recurrence perhaps being experienced by another person. It may be that the Tribunal has found evidence of systemic discrimination but can do little to effect change. For an individual to be able to rely in a subsequent claim on a failure by an employer to enact a Tribunal recommendation it is essential that Tribunal decisions are publicly available, for example by being available on-line. Currently they are not and this needs urgent rectification. Further it is disappointing that Tribunal recommendations will not apply in Equal Pay cases: one area where discrimination is most likely to be systemic i.e. a structural problem rather than discrimination against an individual.

 

8.7. Protection for carers

This provision will greatly assist many women who as well as working often act as an unpaid carer for relatives and currently enjoy no legal protection. We also welcome the extension of protection from discrimination on grounds of association to other grounds.

 

8.8. Protection for breast-feeding mothers

This provision is new, long overdue and welcome.

 

8.9. Banning discrimination in private clubs

We welcome this measure.

 

8.10 Strengthened protection for disabled people

We welcome these changes as a positive step.

 

8.11 Harassment

It is completely unacceptable the harassment has to occur on 2 previous occasions before there are obligations for an employer to act. Also we note with disappointment that the Bill does not protect from harassment on grounds of sexual orientation or religion or belief outside the workplace; or protect school students from harassment on grounds of gender reassignment, sexual orientation or religion/belief.

 

June 2009