International Women’s Day

Debate between Emily Thornberry and Mary Macleod

Thursday 5th March 2015 Commons Chamber

[Emily Thornberry]

There are other problems with the Equal Pay Act. The fact that there are fees has put women off taking cases; there has been a decline of 70% or 80% in the number of women taking cases on equal pay.

I have talked about settlements and about the need for six years’ compensation and its chilling effect, but in addition the Equal Pay Act was based on another way of working in another world. It does not comprehend outsourcing, agency working, bogus self-employment and all the things that have, in my view, often been used to circumvent equal pay. We need a new pay Act that would ensure that such difficulties are directly addressed.

All sorts of increasingly bizarre loopholes have developed in the law. For example, if a woman is replaced by a man and the man gets paid more, it would seem that she is not allowed to compare him with herself and to compare his level of pay to show that she has been discriminated against. In my view, that is nonsense. If a man is paid more than a woman it is a defence for the employer to say that that is not discrimination because it is owing to some other material factor—historical or mistaken. Obviously, that is also nonsense. There is even an argument, which has been upheld in some court cases although not all, that if a woman compares herself with a man who is employed by the same employer but works in a different building, it is not a fair comparison. That is obviously another piece of nonsense that needs to be swept away in a new equal pay Act.

The fundamental problem with the Equal Pay Act is that it is based on individual women taking complaints about their individual circumstances. We should accept, in clause 1 of a new Bill, that it is the responsibility of all of us to ensure that there is equal pay between the genders, so we need to work together to do something about it. A new Act should have a code of practice with some legal standing attached to it so that employers know that they will not be sued so long as the agreements negotiated with the trade unions are made within the code. Employers could volunteer to have proper pay audits, job evaluations and skills audits. If they out sourced that to recognised experts and acted on the basis of their recommendations, that would be a complete defence against any equal pay claim.

[Mary Macleod]

Does the hon. Lady agree that some of the “Think, Act, Report” work, in which the Government have pushed organisations to be transparent on diversity issues, for example by revealing the number of employees at each level within the organisation and the gender pay gap, is the first step to making life fairer within a business?

[Emily Thornberry]

Section 78 of the Equality Act 2010 was introduced by the previous Government and has not been implemented by the current Government, which is a great shame. Section 78 orders all businesses with more than 250 employees to have a proper pay audit. The devil is in the detail, and it could well be a modest change, even if it was implemented. The requirement to make available proper pay information so that pay can be compared across different stratums of equivalent work is an important call to arms to which the Labour party has committed itself as a first step, but a new equal pay Act would give substance to that.

I was talking earlier about the idea of collective responsibility and of businesses volunteering to have a proper root-and-branch look at how they pay people. If the agreements reached are a complete defence so that they are not scared about changing the way in which they pay men and women or about paying six years’ compensation, we may well find that more businesses come forward. If we have a code of practice under which the trade unions can negotiate equality between the sexes and eradicate the gender pay gap, we can all move together towards the sort of world that we want, in which there is not discrimination between men and women.

We need to look again at the powers of employment tribunals and the way in which they act. In serious and complicated cases, senior judges—High Court judges or whoever—should be brought in to make sure that the cases get through the system quickly and efficiently and there is no time wasting. We should bring back the questionnaire. Why the Government got rid of it, I do not understand. It should be two pages that a woman can send to her employer and say, “Could you give me information on this?” Let us keep it short and punchy, but let us enable women to get some information so that they know whether they have a case.

Perhaps the most important thing is to treat women not as individuals taking individual cases but as whistleblowers. If they go before an employment tribunal and explain that in the culture of a company or organisation they and their sisters are being discriminated against, the tribunal should have the power to step in and order a proper pay audit and skills evaluation. Then there should be a plan. I appreciate that the Government have introduced the power for tribunals to order an audit if a case is lost, but the law is silent on implementation. So let us implement it. Let us not just have a little bit of window-dressing. Let us make sure that there is a proper study of the cultures within organisations where there has been discrimination, and let us make sure that there is a plan for change. I respectfully suggest that that plan for change should be overseen by the Equality and Human Rights Commission and that the commission should make sure that the plan is implemented. Failure to implement it should be treated as a form of contempt of court. The organisation can then be brought back and a penalty imposed.

We need new legislation which is fit for the 21st century, which is based not on individuals, but on collective responsibility, which in the end ought to be the responsibility of our whole society. This seems to me the sort of thing that we could do. There could be particular powers over a short period of five years—for example, compensation of just two years instead of six years for a period of five years; no tribunal fees for a period of five years; a business not needing to pay compensation for five years if it conducts a root-and-branch audit of the way in which it pays people. Such steps could push matters forward, and at long last we could address at least that part of what holds women back. Unless we do something about it, it may hold back the girls from Elizabeth Garrett Anderson. We will deal with flexible working and unpaid work at another stage. Let us take one step at a time. That is what I propose for a new equal pay Act.