Could a new form of discrimination law shrink the pay gap?

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The pay gap between men and women continues to exist. Sorry, not just exist, but in certain EU jurisdictions it has got wider. The answer, according to EU Parliament last month, is to enact tougher sanctions, predominantly on employers. But the ‘regulatory failure’ (in political EU speak) is not a lack of sanction. It may very well be the way we look at the way in which the law operates.

The UK’s legislation for dealing with the issue was first in the Equal Pay Act 1970, now in the Equality Act 2010 along with other discrimination legislation. The legislation has been amended several times, but never fundamentally redrafted since it the wording was originally prepared.

It’s worth considering the world in which that original law was prepared. In 1966 women made up only 4% of the working population. Those who did were pretty much the bottom of the societal pile. The pay system of the economy was built on pay differentials between one set of employees and another. It was that world which the Equal Pay Act 1970 sought to address.

It’s that dynamic of the 1960s shop floor which still drives the law today - and that’s why it doesn’t work many decades later.

The gender comparison exercise is misleading and doesn’t work. It ignores one important truth; women have primary childcare responsibility in the vast majority of families. It is this primary childcare responsibility which could explain the larger number of women working in part-time employment. It often explains limited career advancement opportunities, lack of job mobility and other factors, which appear to be causes of pay inequality.

The problem is that it is difficult to try and chase the link to unequal pay through the existing gender-based law. If the existing equal pay law and processes are to be retained, they will need to be supplemented. This must take the form of the development of protection for workers who have primary childcare responsibility akin to a new form of discrimination protection. If subjecting employees to a detriment on the grounds of primary childcare responsibility was made unlawful it would go a long way to helping narrow the pay gap. This would offer protection to the newest wave of the shop floor workers of history; the parent whose childcare responsibilities effectively disqualifies them from many of roles or of earning more.

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