Gillian MacLellan: Fight for equal pay still to be won

Last month saw the launch of the #MeTooPay campaign, founded after the high-profile case of banker Stacey Macken who won an employment tribunal against her employer for equal pay.

#MeTooPay has some highly influential women behind it, including the former head of Royal Mail Moya Greene, London School of Economics director Minouche Shafik, and the former TalkTalk boss Lady Dido Harding. Along with fellow campaigners, their aim is to use this new group as a means of ending gender-based pay discrimination.

By aligning its name with the #Metoo movement, it’s tempting to think this new campaign may have the same media profile and impact that its predecessor had on the issue of workplace harassment. But can this new campaign realistically expect to have that same level of impact?

While the intentions of #MeTooPay will attract widespread support, there are still significant legal issues that need to be addressed around pay discrimination and progress. The reactive and individual legislation we’ve had in the UK since the Equal Pay Act came into force in 1975 has been slow to bring about collective change within many workplaces. Although we’ve had a flood of equal pay claims from within the public sector, culminating in systemic changes around job evaluation, the same cannot be said for the private sector where pay remains largely individual and discretionary.

There’s no doubt that we’ve seen major progress from many employers in addressing sexual harassment in the workplace, partly driven by the high level of media exposure around the reported actions of some celebrities and prominent figures within the business community. There were a multitude of reasons why workplace harassment was ripe for this level of media exposure. Whatever the legal test might say, in the court of public opinion harassment is an emotive issue with judgments quickly formed. You don’t need a lawyer to tell you if someone’s behaviour was rude or sleazy. You do, however, need an expert to tell you whether a job is of “equal value” in a legal sense.

Cultural barriers associated with pay also need to be considered. Despite pay secrecy clauses being banned in 2010, few people in the private sector know what their colleagues are paid, nor are they inclined to ask. Employees tend not to discuss how much they earn, while employers have in the past been reluctant to be transparent on pay.

The factors determining equal pay are often complex involving a comparison of roles where people are doing the same job with the same level of experience, or an analysis of the overall value of work in male vs female-dominated positions.

In one equal value case, for example, a speech therapist successfully compared the value of her role to that of a pharmacist. These grey areas don’t tend to capture the headlines in the same way that allegations of sexual harassment or bullying do.

One potential means of addressing the problems associated with equal pay is to follow a more proactive approach like that applied in Iceland where the onus to act is on the employer. Organisations with more than 25 employees operating within Iceland are required to comply with an equal pay certification process which aims to ensure that decisions on wages do not involve discrimination on the grounds of gender.

Another interesting approach has been adopted in Germany where large employers with more than 500 employees are encouraged – although it is not mandatory – to carry out an equal pay audit.

An equal pay review can deliver several benefits, and employers should view this in the same way as a pay “health check” to help them understand whether there is gender inequality in their pay structure. Where any discrepancies are identified, employers will be better placed to take remedial action.

A review can also improve an organisation’s ability to defend itself against a claim and enable it to demonstrate the basis of a gender pay gap that may exist for non-discriminatory reasons.

Campaigners will be hoping the high-profile signatories behind #MeTooPay and the momentum gained by the earlier #MeToo campaign will advance the issue of pay inequality in the UK.

It is, however, for the reasons outlined above questionable whether it will have the same impact (certainly in the short term) that #MeToo has had in changing the mindset around workplace harassment.

Gillian MacLellan, partner and employment law specialist at CMS