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In 2021, there was a 15.4% pay gap between men and women according to government data

Introduction

A milestone in equality law was the Equal Pay Act back in 1970 – which, for the first time, required women and men to be paid equally. That was half a century ago.

Then, 5 years later, the Sex Discrimination Act was introduced. This went further than the Equal Pay Act and made it unlawful for women and men to be treated less favourably on the grounds of their sex.

Equality law was then relatively quiet until the early 1990s.

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Dekker & the hypothetical man

I started as an employment lawyer in the 1990s. Back then, the world of work was a very different place (smoking in the office was still the norm!) and employment rights were very much limited – particularly in the context of gender equality.  For example, prior to 1991, it was actually lawful not to hire a female employee on the grounds of her pregnancy.

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With Dekker, the test of comparing a pregnant woman to a hypothetical man was abolished

This all changed with the ruling of the European Court of Justice (ECJ) in Dekker.  Here, Miss Dekker was not employed because she was pregnant.  The ECJ ruled that this was direct discrimination contrary to European law.

A pregnant woman, held the ECJ, is unique and the test which had previously been employed by the UK courts – that of comparing a pregnant woman with a hypothetical man was, effectively, abolished.

Before Dekker, lawyers tried to find the hypothetical man: If the hypothetical man – for example, with a long-term hip injury, would not have been employed, then there would be no discrimination.

Next, the Webb case

Dekker was followed, in 1994, by Webb. Here, Mrs Webb informed her employer, after 2 weeks service, that she was pregnant.  She was dismissed as a consequence.  The Industrial Tribunal (as it was then called) held there was no discrimination.

A hypothetical man who had been recruited and who would have been absent from work for a similar amount of time would have been dismissed too.

After several years of legal wrangling and a referral to the ECJ, the House of Lords (now the Supreme Court) ruled that no comparator was required. Dismissal on the grounds of pregnancy was unlawful.

Just 2 cases, only 3 years apart, which radically altered equality law in the UK.

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Webb established that dismissal on the grounds of pregnancy was unlawful

The Equality Act 2010

In 2010 a new Equality Act was brought in bringing together over 116 separate pieces of legislation into one single act, including those mentioned earlier.

The act legally protects people from discrimination in the workplace and in wider society.

More recently, there have been further legislative developments. For example, the Gender Pay Regulations (2017) required employers with over 250 employees to report on their male and female salaries.

Yet in 2021, there was still a 15.4% pay gap between men and women (FTE and PTE) and it was found that women earn, on average, 9% per hour less than men.

Progress has been made but whilst the law appears to be addressing gender imbalances, can the same be said of businesses?

Helpful resources

There’s plenty you can do to get familiar with current legislation and best practice. The Government’s own websites have a come a long way in recent years and in addition to having good guidance on the law (see links below referring to the legislation mentioned in the article), they also publish reports on their own gender equality efforts across different departments.  The Gender Equalities Office (GEO) is also a useful source of information on the law, policy, guidance and statistics.

Some useful sources below.

The Government Equalities Office

Guidance on the Equality Act 2010

Gender Pay Gap regs and reporting

Gender Pay Gap ONS Statistics

Jonathan Waters My Inhouse Lawyer
Written by Jonathan Waters
Principal at My Inhouse Lawyer

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