Equality in the workplace: Where are we now?

More than 45 years since the principle of equal pay was introduced, flanked today by increasingly broad anti-discriminatory and anti-harassment legislation, Fieldfisher considers what has been achieved, what hasn't, and why.
 
The Equality Act was a consolidating piece of legislation intended to bring together various strands of discrimination law in one place and widen provisions around positive action, while the Equal Pay Act was the first piece of domestic legislation to provide for equal pay for equal work.

Much depends on how you measure success, but one method is to evaluate the diversity of the UK workforce. By that yardstick, the Equality Act is not driving change as quickly as employers looking to broaden representation in their talent pools might hope.

Looking at race diversity, Office of National Statistics figures continue to show the employment rate for ethnic minorities as being significantly below that of white workers, and similar gaps in relation to disabled workers.

On sex equality, a further measure of what has been achieved comes from comparing pay levels of men and women. The Equal Pay Act of 1970 came into force as a late Christmas present to workers in 1975, before being consolidated (with some changes) into the Equality Act.

The principle of equal pay has therefore been on the statute book for almost 45 years, but it is notoriously complex and the most well-meaning employers have had trouble applying it.

Despite this long legislative legacy, the UK's gender pay gap persists. While it is true that gender pay gap statistics are a blunt tool to measure the effectiveness or otherwise of equal pay legislation, they are nonetheless a clear indication that gender pay equality has not been reached (a fact also illustrated by recent case law).

Given that employment law is not meant to simply reflect society, but rather to change it for the better, the lack of progress delivered by equality legislation deserves to be questioned.

While the answers are manifold, key reasons for persistent inequalities include:

• Problems with enforcement

There have always been issues around enforcement. The Equality Act gives individuals rights and, for the most part, it is up to individuals to enforce them.

This is a tough ask; despite protections against victimisation, few vulnerable workers will take a current employer to tribunal. Those who do, or who bring claims after their employment has ended, face stressful proceedings, delays in hearing their claims, legal costs (if represented) and significant disruption to their life and career.

While the vast majority of employers work hard to ensure their employees do not suffer discriminatory treatment, the risk of claims is unlikely to be sufficient to incentivise the minority of unscrupulous employers to take action.

• One size does not fit all

The Equality Act (mostly) deals with hostile acts, such as discrimination, harassment and victimisation. However, the day-to-day challenges faced by groups sharing protected characteristics are complex, nuanced and often not overt.

The Equality Act made some progress in this area in relation to disabled individuals by implementing a new protection from discrimination arising from disability and by extending the duty to make reasonable adjustments. However, the act fails to capture the subtle ways in which equality of opportunity can be denied in respect of other protected characteristics.

A one-size-fits-all approach cannot begin to resolve these issues, and offers employers insufficient guidance to support groups who, because of shared protected characteristics, may have particular, complex needs.

• Cultural obstacles

The truth is that legislation can only be a driver for change, it cannot effect change on its own. Real change comes about through a complex interplay of law and cultural norms.

For example, it was unlawful to sexually harass employees long before the Harvey Weinstein scandal. However, as #metoo showed, these laws did not prevent harassment from occurring and it was not until women and others affected by such behaviour organised and applied public pressure that the issue was brought into the public eye, instigating (hopefully) a cultural shift.

• Lack of pay transparency

In an equal pay context the challenge has been made more difficult by a cultural resistance to discussing pay. While the Equality Act introduced a prohibition on pay secrecy clauses, in practice salaries are still not discussed openly.

Throw into the mix an historic lack of transparency around pay structures and we can begin to see how difficult it has been to spot the problem, let alone address it. Culturally conditioned and discriminatory attitudes are very deeply ingrained and, despite employers' best efforts, difficult to shift.

The Equality Act was not the silver bullet some may have hoped, but it did provide a (relatively) simple statement of rights. In its simplicity, it is flexible enough to move with the times, embracing everything from gender equality to protection for ethical veganism.

Developments in practice continue to drive debate among employers about how things can be improved. This has led to reforms being introduced to address specific issues (e.g. around pregnancy discrimination), and continues to provoke more radical ways of speeding up change (e.g. around quotas and extending the use of positive action).

More than anything, the Equality Act is a statement of our values as a society, and we are excited to see those values at the heart of constantly evolving employment policy.

This article was authored by Hannah Disselbeck, a senior associate in the employment, pensions, immigration and compliance team at Fieldfisher.
 
A version of this article was first published by Employee Bennefits.