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Not keeping mum any more about the gender pay gap

Posted by BDBF on 30 October, 2017

According to official statistics, London has the highest rate of older mothers in the country. The likely reason for this disparity is that women in the City have put off having children in favour of education and their careers. However, does this mean that these women are then at greater risk of being discriminated against in the workplace, such that their earlier commitment to their careers backfires?

Recent months have produced a number of stark and depressing statistics relating to women in the workplace.

Across the British workforce, men are likely to earn up to 18% more than their female counter-parts.  Whilst the statistics indicate that the gender pay gap among 20-somethings is closing (it is currently 5% according to a report by the Resolution Foundation), the gap widens dramatically after age 30. The Resolution Foundation predicts that the gender pay gap for millennials is on track to reach almost 30% by the age of 40 unless changes are made.

This doesn’t only affect women’s pockets on a day-to-day basis, but is also having a long-term impact on pensions. Indeed, the pension gap is even greater. A recent study by Mercer into the EU gender pension gap showed that the average retired woman received an annual pension payment which was 40% less than their male contemporaries. As the life expectancy for women is generally longer than for men, that’s an awful lot less cash which needs to go a lot further.

The reason for this inequality is that women have babies (or even if they don’t, there is a misconceived ‘fear’ that they will) and subsequently take on the majority of childcare. Why else would the gender pay gap increase dramatically between the ages of 30 and 40? Whilst more men are taking on childcare responsibilities (which is fantastic), it’s still very much the exception.

Gender equality is all of a sudden very much in the spotlight. There has been outrage at the statistics, but what is actually being done to tackle the problem? The answer is very little and, certainly, not enough. Short of reprogramming society’s gender politics (which must be the long-term solution), the answer seems to lie in government policy and legislation to help protect women now whilst also shaping the next generation’s mentality.

The Taylor Review of Modern Working Practices made some generic observations on pregnancy and maternity discrimination, but it was difficult to identify any firm recommendations beyond working with ACAS, increasing awareness and considering further options for legislative intervention (without any indication as to what that “legislative intervention” would be). Given the review’s meek response, below are some ideas:

  • Extend the time limit for submitting claims for maternity and/or pregnancy discrimination from 3 months to 6 months. The current 3 month time limit is not long enough and does deter pregnant women and new mums from accessing justice  – almost certainly because looking after their health and family is a greater priority at that particular time. It’s an easy change to make and one that could have far-reaching benefits.
  • Increase the duration and pay of paternity leave so that the options for childcare are more evenly distributed between parents. A maximum of 2 weeks’ paid paternity leave is woeful and only acts as an obstacle to shifting perceptions that women should bear the brunt of childcare.
  • Extend the protected period for new and expectant mothers so that it runs from notification of pregnancy to 6 months after returning from maternity leave. In addition, the number of “reasons” for dismissing employees within this extended protected period should be limited to avoid sham dismissal situations.
  • Bring back discrimination questionnaires! In the past, an individual could submit written questions to their employer in order to ascertain whether or not they had been subjected to discriminatory treatment. An employer had 8 weeks to provide a response and if no response was provided “adverse inferences” could be drawn by an Employment Tribunal. Discrimination questionnaires were excellent tools enabling employees to obtain more information from their employer about potential discriminatory treatment and/or discriminatory working practices. However, the government criticised discrimination questionnaires for adding too much red tape for businesses and estimated that between 9,000 and 10,000 businesses completed the forms each year, which on average took 5 to 6 hours to complete – basically, a lot of man hours. Further, the government stated that there was insufficient evidence to demonstrate the efficacy of discrimination questionnaires for resolving disputes and settling claims. Whilst employees can still submit written questions to an employer, there is no obligation on an employer to respond and no legal grounds to infer discriminatory treatment from equivocal or evasive answers. It is therefore much more difficult for employees to obtain the evidence needed to assert a valid discrimination claim.
  • Make the publication of salaries applicable to all employers. It was only once the BBC was required to publish its list of top earners, which clearly showed the disparity in pay between its female and male stars, that the BBC was pushed to review and address its salaries across the board. It may have also resulted in some of the BBC’s female stars negotiating a salary increase to match their male counterparts. There has been a move in the right direction on this front because by April 2018, companies with more than 250 employees must publish their gender pay gaps. However, the requirement under this legislation is to publish mean and median pay and bonus data, rather than individual salaries/salary brackets as published by the BBC. This is arguably harder to take meaningful information from. While there is still some time before the deadline, so far only a small number of employers have been forthcoming with their data (as at the publication of this article, 180 employers nationwide had published their data on the government’s website). Perhaps it is a case of too much business to be getting on with, or maybe there is a real fear of the legal exposure this could lead to. It seems clear that there needs to be more transparency in respect of employees’ pay in order to tackle gender pay inequality.

The above are just a few ways that government intervention could have a positive impact on women and parents, which in turn would help change outdated and traditional attitudes towards women in the workplace and their valuable contributions. Sadly, these ideas may seem a bit too “radical” for the current government whose attention is probably more focused on something called Brexit.

Pregnant Then Screwed (an online community allowing women to share their experiences of maternity discrimination) has organised a “March of the Mummies” event on Tuesday 31 October 2017. The aim of the march is to demand recognition, respect and change for working mums. Given the inadequate recommendations made in the Taylor Review and the complete inaction by our current government, joining forces and campaigning for reform may be the only way that significant changes will start to happen.

Ruth Gamble is a Partner and Emily Plosker is a Senior Associate at City employment law firm BDBF.