Workshop 3: Equal pay, harassment, and positive action Introduction The previous seminar

Workshop 3: Equal pay, harassment, and positive action

Introduction

The previous seminar looked at the general protections against direct and indirect discrimination contained in the Equality Act 2010. This time we look at the provisions in the Equality Act focussed on securing equal pay for equal work between men and women, as well as those specifically aimed at harassment and when employers are permitted to take ‘positive action’ to benefit specific groups in the workplace.

The gender pay gap and ‘equality of terms’ claims

If men and women are being paid differently (or have different contractual terms) for doing equal work then they may be able to bring an equality of terms claim, and have their contract adjusted to the higher level of pay and benefits. For historical reasons, the mechanism for equality of terms claims between people of the opposite sex is different than other discrimination law claims; it operates under an implied contractual term, called the ‘sex equality clause’, rather than statutory tort framework of direct discrimination that we studied last seminar. As a result, different legal rules apply, which are contained in the Equality Act 2010 Part 5, Chapter 3. Also relevant are the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which introduce pay reporting requirements for some companies.

Core

Please read at least one of the following textbook chapters:

D. Cabrelli, Employment Law in Context (OUP, 2020), chapter 14. [Available online via law trove]

S. Honeyball, Employment Law (OUP, 2014) chapter 11.1. [Available online via law trove]

B. Hepple, Equality: The Legal Framework (Hart, 2014), chapter 4.

B. Frances-Devine and D. Ferguson, ‘The Gender Pay Gap’, (2020) House of Commons Library Briefing Paper. Available here: https://researchbriefings.files.parliament.uk/documents/SN07068/SN07068.pdf

Further

L. Gow and S. Middlemiss, ‘Equal pay legislation and its impact on the gender pay gap’, (2011) 11 International Journal of Discrimination and the Law 164.

S. Fredman, ‘Reforming Equal Pay Laws’, 37 (2008) Industrial Law Journal 193.

Deakin et al, ‘Are litigation and collective bargaining complements or substitutes for achieving gender equality? A study of the British Equal Pay Act’, (2015) 39 CJE 381.

Workplace harassment

The Equality Act 2010 protects against harassment and sexual harassment, which are defined as unwanted conduct violate people’s dignity or creates a hostile environment. The protections are set out in the Equality Act 2010, ss.26, 40, and 108.

Core

Please read one of the following textbook sections on harassment:

D. Cabrelli, Employment Law in Context (2020), chapter 10.2.5. [Available online via law trove]

B. Hepple, Equality: The Legal Framework (Hart, 2014), pp.97-103.

S. Honeyball, Employment Law (OUP, 2014) chapter 10.3.4. [Available online via law trove]

House of Commons Women and Equalities Committee, ‘Report on Sexual harassment in the workplace’ (2018). Read at least the summary on pages 3-4. Online at: https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/725/725.pdf

See also the Government response to the Committee report, which includes a commitment to introduce a new protective duty. Available online at: www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace

Positive action and positive duties

Positive action (otherwise known as affirmative action or positive discrimination) includes policies and hiring decisions that benefit groups with certain protected characteristics. This is a controversial issue, because from the perspective of those who do not benefit the policies and decisions amount to direct discrimination against them. There are only limited circumstances where this is permitted under the Equality Act 2010, sections 158 and 159.

Another important issue is whether employers should be subject to positive duties requiring them to take positive steps to improve equality in the workplace. The Equality Act 2010 imposes very limited duties of this kind. The main examples being the duty of reasonable adjustment for people with disabilities, and the public sector equality duty.

Core

Cabrelli, Employment Law in Context, 4th Edition (2018), chapter 11.3 on positive action, and chapter 12.3.3 on the duty to make reasonable adjustments.

B. Hepple, Equality The Legal Framework, 2nd edition (2014), p.163-176.

Further

C. O’Cinneide, C. (2006). Positive Action and the Limits of Existing Law. Maastricht Journal of European and Comparative Law, 13(3) 351.

L. Barmes, ‘Equality law and experimentation: The positive action challenge’ (2009) Cambridge Law Journal 623.

M. Noon, The shackled runner: time to rethink positive discrimination? Work, Employment and Society, (2010) 24(4) 728.

D. Tan, ‘Demarcating the Margin: Positive Obligations under Article 14 of the European Convention on Human Rights’, (2018) Columbia Journal of European Law. Available online here.

Discussion Questions

What factors do you think create gender pay inequalities in the labour market?

Can the problem of pay gaps based on gender/race/disability be effectively addressed by the current law? If not, what other measures might be needed?

Does the law make it too easy for employers to justify unequal pay for equal work?

How effective do you think gender pay reporting requirements are as a regulatory tool for tackling the gender pay gap?

How effective are the protections against harassment contained in the Equality Act 2010 for tackling the type of behaviour which triggered the #metoo movement?

Do you think positive duties on employers to promote equality in the workplace make a meaningful difference, and should private sector employers have positive duties of this kind?

Do you think sections 158 and 159 of the Equality Act 2010 make it too difficult for employers to take positive action to reduce inequality in the workplace?

**BONUS QUESTION on Algorithmic Discrimination**

Please read the following blog: https://uklabourlawblog.com/2020/09/10/automated-management-and-liability-for-digital-discrimination-under-the-equality-act-2010-by-joe-atkinson/. After reading this, do you think we need to introduce new legal protections to address the problem of algorithmic discrimination?

For further reading on this topic please see A. Kelly-Lyth, ‘Challenging Biased Hiring Algorithms’. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3744248.