Clause 59
Equality Bill
10:45 am
Vera Baird (Solicitor General, Attorney General's Office; Redcar, Labour)
I know that there are a number of views on the matter. The Fawcett Society and the NWC are in favour of hypothetical comparators, as the hon. Member for Hornsey and Wood Green said. I will turn specifically to that. If anybody finds it helpful, I could set out the whole scheme of the chapter, but I think she put her finger on the point that she is really interested in, as did my hon. Friend the Member for Ayr, Carrick and Cumnock.
I hope that it would be helpful if I set out some examples that are usually given to support the need for hypothetical comparison in equal pay cases. The first kind of example is about gender segregation, which the hon. Member for Hornsey and Wood Green has already mentioned. The example is that in some work environments, as a result of gender segregation, no men are doing equivalent work to women. The suggestion is that if the women believed that they were underpaid, they should be able to claim on the basis that, were there a man doing that work, he would be paid more. The amendment would allow that.
One difficulty with that is what the evidence would be that a man in that situation would be paid more. If there is clear evidence, such as a statement by the employer to that effect, a claim would be a possible—we have made it so in clause 66—as that would be direct discrimination. There may not be many cases of that, but those that exist will be caught by the Bill. Any remaining gap would be in cases where the employer discriminates indirectly against a woman in relation to contractual pay.
The amendments demonstrate the difficulty of doing that. As I understand them, the amendments would permit a claimant to argue that B, a hypothetical employee doing the same or similar work, has a term in their contract that the claimant does not, or one that is better than the equivalent one that the claimant has. It is quite difficult to see on what basis a tribunal could reasonably reach that conclusion. If it were asked to do so by relying on evidence that people doing completely different work had such a term, such a claim would not succeed. In effect, we would be asking the tribunal to decide that the fact that there is a difference in pay between two people of the opposite sex doing completely different work somehow supports the argument that two such people doing the same work would also be paid differently. That is a significant thing to ask a tribunal to do, and considerable uncertainty would emerge.
I may be asked what the difference is between that and a case of indirect sex discrimination. In an indirect discrimination case advanced on that basis, an employer would say that the difference in pay reflects a difference in work. That would, in our view, be sufficient to establish that there was a materially different set of circumstances under clause 22, which is the clause I spoke of earlier when we dealt with contract workers, and hence, the claim would fail.
A similar point can be made in respect of other examples commonly given. For example, a woman being paid only 50 per cent. of the salary given to a man, when she works at 75 per cent. of the value, should be able to claim. Other examples commonly given arise from situations where work has been privatised. They are difficult examples to agree with, because they call for a comparison between the terms of people who are employed by different employers. That is not how the Bill works, and cannot be right. Direct discrimination in pay can, and should, in our view be properly examined through the equality clause provisions in the Bill.
An alternative approach would have been to scrap the contractual approach, but Members will know that we have retained the contractual approach and the distinction between contractual and non-contractual pay matters for work-related gender discrimination. While we could have done the opposite—scrap the contractual approach—or allow discrimination claims in parallel with it, in our view, all the difficult issues that arise in equal pay cases would arise with the discrimination approach too, only that they would be in a different order.
Mr. Benton, I wonder if it is possible for me to leave the room for a brief duration. I apologise that it is at so inconvenient a time.