International Women's Day 2022: Gender Equality in the Workplace
International Women's Day is a unique opportunity to reflect on and celebrate the significant historical and ongoing achievements of women and their role in modern day society. Employment issues have always been a key issue for women's matters, with the world of work giving many examples of both positive change that have come about over time, but also giving many examples where there is still scope for significant improvement and 'levelling up' in terms of gender equality.
On International Women's Day 2022, Danielle Lister, Partner and Head of Employment Law at Chattertons Solicitors, considers some of the key employment issues and challenges still affecting women in the workplace in 2022.
GENDER PAY GAP AND EQUAL PAY
It is fair to say that even in 2022, the issue of the gender pay gap and direct equality of pay between men and women is still a very relevant topic. Recent studies relating to such issues tell us there is still plenty of work to be done, and that unfortunately full equality between genders seems to be some way off.
Between the four years between 2015 and 2018, claims in the Employment Tribunal for equal pay more than tripled, increasing from 9,770 claims in 2014/15 to 35,561 in 2017/18. This significant increase suggests the issue of equal pay clearly needs more work. This was followed in 2020 by statistical analysis undertaken by law firm DLA Piper which concluded that an average of almost 29,000 equal pay complaints are received by the Employment Tribunal per year as (at the time of that analysis) the Equal Pay Act reached its 50th anniversary. The overwhelming majority of claims for equal pay continue to be from female employees citing comparisons with their male counterparts. Given the fact that it has now been over 50 years since the Equal Pay Act was introduced, it is perhaps surprising and a little disappointing that inequality in pay between the genders still seems to be such a significant issue.
GENDER PAY GAP
With regards to the gender pay gap, according to the Gender Equality Monitor (published by the government and which tracks issues relating to gender equality), in 2018 it was reported that the gap between average earnings of men and women (excluding overtime) was at its lowest level since records began. This report suggested that men were earning 17.9% more than women on average per hour. This means that, at that time, for every £1 the average man earned, the average woman earned 82p. The direction of travel showing an overall closing of the gap was at least encouraging, but clearly an unacceptable gap still exists, with sometimes significant disparities across some organisations and industries where the difference in pay can be substantial. We also know that the UK lags behind many other countries in its overall gender pay gap.
Unfortunately, the Covid-19 pandemic has had a disproportionate impact on female employees overall. More recent figures in 2021 show the gender pay gap actually increased from its previous year, from 7.0% in 2020, rising to 7.9% in 2021. The theme of 'needing to do better' therefore continues.
What to do if you think you are being paid unequally?
The sensible place to start would be to raise this with your employer. This might be through informal channels, such as a discussion, or making a formal request for information on pay of relevant individuals/roles within your organisation where you suspect inequality of pay, or even raising a grievance if you already have the information and are concerned about it. Raising the issue with the employer can be helpful as it may be possible to rectify the issue without needing to pursue a claim in the Employment Tribunal, a step which can be time-consuming, and can seem quite an intimidating process. If those discussions/complaints are not resolved satisfactorily, then the next step would be to seek a resolution in the Employment Tribunal by pursuing a claim for Equal Pay. Taking part in ACAS conciliation is a requirement before pursuing a claim of this nature, and so it may be possible that this process resolves the issue without actually getting to the point of litigating a claim, but if the situation is not resolved via conciliation, the Employment Tribunal's function is to determine such matters and make awards for back pay/compensation where an employee has been unequally paid based on their gender.
What to do as an employer if you are concerned about claims of unequal pay in your business?
It is sensible to undertake regular reviews of your pay and remuneration packages, and to consider any disparities and why they might exist. Differences for genuine, legitimate reasons not associated with gender can be justified. However, differences in pay that cannot be explained with reference to other 'genuine material factors', are likely to pose significant risks. As the employer, once you have identified a difference in pay, you can then rectify this to ensure there is no inequality in pay based on gender (or indeed, any other potentially discriminating factors).
Other steps that can be taken by an employer are to have an equal pay policy in place, ensuring job descriptions are both up to date and accurate and to ensure consistency in application of any pay structure that the business operates. In addition, larger employers with 250 employees or more have an obligation to report gender pay gaps within their business. Whilst a pay gap in itself does not necessarily show inequality of pay for the purposes of an Equal Pay claim, this information can be used to consider whether the finer details behind any gender pay gaps could translate into direct unequal pay concerns or subsequent claims.
FLEXIBLE WORKING – CHILDCARE AND CARING RESPONSIBILITIES
Many female employees typically take on higher levels of caring responsibilities, whether for children, older relatives or otherwise. This often results in a higher proportion of the female workforce requiring flexible working practices. In some ways, the change in attitudes to work and in particular the higher uptake of flexible and agile working that appears to have been left in the wake of the Covid-19 pandemic, may have assisted with this. We appear to be leaving the pandemic with a much larger proportion of employers who are genuinely embracing flexible/agile working. This is a positive change for many female employees who can often struggle to juggle work and childcare/caring responsibilities, and who before now may have felt a request for flexible or agile working might be perceived negatively and call into question their commitment to the job. It is clear in the modern world of work that the most successful employers are those that are prepared to embrace flexibility and allow an effective balance between home and working life for their employees.
Employees that wish to do so are entitled to make a formal request for flexible working under current employment laws. When a request is made, the employer must follow a statutory process to ensure that the request is properly considered, and indeed, such a request can only be rejected for eight specified reasons. Recent case law has shown there can be substantial costs associated for employers who fail to deal with such requests appropriately. In the recent case of Thompson v Scancrown Ltd t/a Manors, the employee won a claim for sex discrimination following a rejected flexible working request to allow her to pick her child up from nursery, and which saw her awarded some £180,000 in compensation.
The issue of menopause affecting the workplace has been raised more and more in recent years. Most recently, a government inquiry is taking place with a view to considering whether employers in the UK should be required to put in place workplace menopause policies to protect women who are going through the menopause against discrimination whilst at work. This followed a 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) which found that three in five menopausal women- were negatively affected at work and almost 900,000 women left their jobs over an undefined period of time because of menopausal symptoms, together with several calls for further legislation to be introduced to protect employees affected by the menopause.
Currently, indirect avenues for legal recourse do potentially exist for employees who are suffering discrimination because of menopause related symptoms. In particular, women affected might pursue claims relating to age, disability or sex discrimination. However, the increasing discussion on the issue of menopause in the workplace shows that it is much higher up on the agenda than it ever used to be and the suggestion that measures could be introduced specifically to protect employees affected by such issues, is a change that many women will welcome.
THE 'GLASS CEILING'
We have heard a lot about the issue of the 'glass-ceiling' in industry, where women are prevented from accessing the top, most powerful positions. Despite a significant amount of discussion on the issue in recent years, a recent report, 'Sex and Power', published in January 2022 by the Fawcett Society, sets out some concerning figures showing the extent to which men still outnumber women occupying the top positions a variety of industries across the UK. The research considered 5,166 positions of power sectors such as business, sport, law, health and politics. Of those, it found that women filled only 32% of those positions. Of FTSE 100 companies, only eight CEO's were female and only 34% of MPs are women. Whilst the report looked at some of the very top positions, the 'glass-ceiling' issue permeates into all level of business in the UK with the vast majority of UK businesses having under-representation of females within their senior positions.
CONCLUSION – WHERE WE ARE NOW
It is clear that some progress on the issue of gender equality in the workplace has been made, but there is still much work to do and significant scope for improvement to achieve genuine gender equality. The increase in levels of claims for equal pay in recent years and the lack of representation of female leaders demonstrate clear challenges that women continue to face in the workplace when compared to their male counterparts. These issues show that genuine opportunities are still being lost by females, but as was noted by the author of the Sex and Power report, at least currently represents a truly negative outcome for society, which loses out on the skills, talents and perspectives of women.
If you are an employer, or employee who needs guidance on any of the above matters, we are here to help. Please do not hesitate to contact our friendly Employment Law team on 01205 351114 or 01636 593505.