The
Solicitor-General: I thank all members of the Committee
for their indulgence and for allowing me to take a most important
telephone call about the steelworks in my constituency, which I could
not put off until the end of our sitting. I want to explain, not least
to the public, what has been going on. I am most grateful to you,
Mr. Benton, and to
colleagues. I
was saying that we could have taken an alternative approach, scrapping
the contractual approach and allowing discrimination claims in parallel
with it. They were the two options. However, all the difficult issues
that arise in equal pay matters would come from that approach, too,
even though they would come in a different order. It is clear that, if
we made a wholesale change, the potential would exist for issues that
have already been settled by the courts to be revisited. It is also
likely that, more often or not, after expensive litigation the result
would be the
same. There
would always be the possibility, too, of new difficulties arising such
as a claim advanced on the basis of a statistical analysis of the pay
given to groups of workers doing different work, differently valued,
perhaps showing that paying one group more disadvantages women who make
up a smaller proportion of that group. Perhaps I should repeat that. A
claim advanced on the basis of a statistical analysis of the pay given
to groups of workers doing very different work—differently
valued—could show that paying more to one group more
disadvantages women who make up a smaller proportion of that group. One
could see such a situation arising. Is that on its own to be the basis
for a
claim? Surely
the right response to that is not artificially to increase the pay of
one group, but to seek to ensure by other means that women are as well
represented in the higher paid group as in the lower. There might be
risks of such cases arising. It would not be right to take the
substantial risk that a large number of new cases, which would
ultimately fail, would arise in such a
way. Doubtless
we will have this argument again in various guises throughout
consideration of the Bill, but that is a key point to raise at this
stage. Changing to a different
model could lead to uncertainty with more litigation and unpredictable
outcomes for employers and employees alike. We are not convinced that
any real advantages for women would be achieved by that change to
offset the disadvantages. Right now there is a need for
stability. What
the hon. Members for Hornsey and Wood Green and for Oxford, West and
Abingdon propose goes beyond the protection offered by indirect
discrimination, and I suggest it goes a very long way. What the issues
expose is in part related to the question of where the boundary lies
between individual disadvantage, which can be corrected by the Bill,
and the disadvantages that arise in society, which should be dealt with
by policies aimed at closing the pay gap rather than individual
remedy.
John
Mason (Glasgow, East) (SNP): I appreciate the point that
the Solicitor-General makes, but if the Bill is not the place to
address such issues, where is? There are some much wider issues out
there disadvantaging women in particular, but also other groups. My own
experience in a local authority showed that comparisons could be made
within the authority, because everyone was employed by the same
employer, but outside there are separate organisations that employ only
specific groups of workers, and they are disadvantaged because they
cannot be compared with anyone else. Is the Bill not the place to deal
with that?
The
Solicitor-General: No. The issue is about equal pay
between workers in the same employ. It is not about trying to ensure
that employer A pays the same rate as employer B, which is something
for trade union negotiations or policies connected more broadly with
trying to redress the disadvantage of women who are likely to be paid
less but who are not in a group that can be protected under the
provision. Ms
Diane Abbott (Hackney, North and Stoke Newington) (Lab):
My hon. and learned Friend says that the issue is about ensuring that
groups of employees doing comparative work for the same employer are
paid the same, but she forgets the electorate. For them, the Bill is
designed to address inequality of pay across the board between men and
women, and they look to the Bill as a mechanism to achieve
that. Over a long period, many groups have raised the issue and the
amendment that colleagues have tabled aims to achieve that. For the public,
this is about not particular employers, but the salaries that women, on
average, can expect to obtain for comparable work done by men, on
average.
The
Solicitor-General: But this is not the clause in which the
public will look for that. If they did, they would be misguided. There
are many other matters in the Bill that we will debate presently, which
are about trying to get equal pay through transparency. There are
requirements on the private and public
sectors.
Lynne
Featherstone: Will the Solicitor-General give
way?
The
Solicitor-General: I will finish my point first and sketch
out the issues so that the hon. Lady can join in our debate about
them.
The
proposal, which is accepted by the CBI and the TUC, is that the
commission will set up a group of the representatives of employers and
employees that will work out the right things to
measure—metrics, as they are now called—to achieve
disclosure of pay gaps firm by firm, industry by industry. That is a
better way to drive forward the broader agenda for equal pay than this
particular provision, which is essentially about protecting an
individual against an overpaid individual doing comparably equal work.
When we come to those provisions, my hon. Friend the Member for
Hackney, North and Stoke Newington will see, if I have not explained
them clearly enough, that they are designed to get rid of the pay gap
that exists in the public sector but more powerfully in the private
sector. In
what we hope is a short period, we shall use the transparency demands
to make businesses see that if they disclose unequal pay, they are not
likely to achieve investment. Smart women will go where there is not
unequal pay and consumers who buy ethically will not buy their goods.
There are other provisions that directly seek to attack the whole
question of systemic unequal
pay. We
shall come to a debate about representative actions, too, albeit they
are not in the Bill. However, they are under consideration. That,
again, can have broader reach into the whole area of systemic
inequality in employment not only for gender—gender in
particular, as that is what we are talking about—but for other
protected
characteristics. 11.15
am Additionally,
in due course we intend to put out a document, side by side with the
Bill, looking at all the other sources of unequal pay and inequality
between men and women. The Women and Work Commission has
been reconvened to look at its earlier recommendations—whether
it sticks with those recommendations, whether it has further
recommendations, whether the Government have done enough to meet the
original demands—and, with our document, we ought to be able to
draw things together for ourselves. There will be consultation, so that
everyone can put in any strategy to get rid of unequal pay. Aspects
such as poor training and the low quality of available part-time work
cannot be reached by legislation. The broader issues of equal pay come
under some of those headings, rather than being dealt with effectively
here. There is plenty yet to come, and everything does not hinge on the
clause. My hon. Friend is right, but this is not where public
expectation should
lie.
Lynne
Featherstone: I appreciate the amount of work that the
Government are doing to deal with such problems—we are all
moving in the same direction. However, this particular case has been
something of an issue for women going to tribunal when in women-only
professions. In a sense, the ability to use a hypothetical comparator
will give them insurance against whatever may happen with the Equality
and Human Rights Commission matrix and all the other things. A number
of organisations have supported the idea. For example, the Equality and
Diversity Forum says that the directive does not permit the exclusion
of provisions outlawing direct and indirect discrimination in relation
to terms and conditions and, therefore, requires that hypothetical
comparisons must be possible in that regard, in the same way as they
would be in relation to race. That would bring the situation into line
with European law.
Also, Unison
says that the EU equal treatment directive allows hypothetical
comparisons. The Bill, therefore, should allow the use of hypothetical
comparators when no actual comparator exists. Interestingly, Unison
says that such comparators ought to be permissible, while the EDF says
that they ought to be a requirement. I would like to probe the Minister
further on why she thinks that those organisations are still clamouring
for a hypothetical comparator to be admitted—to be a requirement
or to be permissible. All the work that she said is going on does not
suffice to satisfy Unison or the EDF. I wish to test her further on
that
issue.
The
Solicitor-General: Organisations, as quoted, do press for
that. They are also engaged with us—on the one hand they take up
a campaigning position, clinging to hypothetical comparators as the
magic elixir, but on the other hand they engage with us on all the
other things that we are doing and appreciate that there is a lot of
progress as well. There is nothing contradictory in that position, but
the hon. Lady needs the context for her assertion that all those people
consistently press for
that. There
is some case law under article 141 of the treaty of Rome, in which the
European Court of Justice has looked at the issue. It has consistently
required an actual comparator to be identified for the purposes of an
equal pay claim under the article. There is nothing in any pending
directive that is likely to change that position. We find that to be a
difficulty in accepting what the hon. Lady
said. There
is, though, a recipe for confusion—I hope that I have expressed
myself using the appropriate technical language, but all sorts of
things can happen, which the hon. Lady is probably familiar with. Take
for example a person in job A—a gardener—who wants to
assert that he should have equal pay to the caretaker, and they are
both men. If a hypothetical comparator were available, one could assume
that one person was a woman and compare the pay of the man with the
theoretical woman to see whether they should have equal pay. That has
nothing to do with discrimination and pay; it concerns an argument that
is better taken on by a trade union. The hypothetical comparator has
real, practical drawbacks, as well as the ones that I have set out, and
as well as the partial bar from Europe on taking it
on.
Dr.
Evan Harris (Oxford, West and Abingdon) (LD): My hon.
Friend read out a note from the Equality and Diversity Forum, which is
a serious organisation. I should like some clarification on that point,
because the forum was referring to the directive of the European
Parliament and the Council of 5 July 2006 on
“the
implementation of the principle of equal opportunities and equal
treatment of men and women in matters of employment and occupation
(recast)”. It
says that the directive has been fully in effect from 15
August 2008 and that it requires that hypothetical comparisons must be
possible in that regard—as mentioned by my hon. Friend—in
the same way that they would be in relation to a race case. That is an
assertion of fact with which I presume the Minister disagrees. If she
could put on the record that she thinks that that is wrong, that would
be helpful for later discussions.
The
Solicitor-General: I would have thought that that was an
assertion of law; it is one with which I disagree and so do the
Government. I acknowledge entirely that EDF is a fine organisation. It
is an organisation of organisations and we are happy and grateful to it
for helping us all the way through the Bill. The tentacles that it has
into equality and diversity are massively important to ensure that we
are always in touch with people on the front line.
In summary,
however, we do not believe that hypothetical comparators are either
workable or required. We fear that allowing their use would create
significant unintended consequences, some of which I have set out
technically, and others I have exemplified. We have therefore decided,
on balance, that ensuring pay equality is better served by maintaining
our current approach. Clause 66 contains a provision to allow claims
where there is evidence of direct discrimination in relation to
contractual pay. I hope that the Committee will welcome that—it
closes a gap in the current law. This law is better than it has been
before, even in this specific way.
We will
reflect carefully on what has been said, but we are not able to offer
satisfaction today. I invite the hon. Lady not to press her amendment
to a Division. However, it is good that we have had the
discussion—we are, as she put it, all driving in the same
direction. We are satisfied that we have a better state of affairs for
the drive towards equal pay than that which she offers, but none the
less, we appreciate that it is a tenable view that she is
right.
The
Chairman: Just before the hon. Member for Hornsey and Wood
Green indicates her intention, I want to ensure that she is aware that
we are discussing clause stand part. If the Committee agrees to that,
it negates her amendments. I want to clarify that so that the Committee
is aware of the procedure. If it is her intention to pursue the
amendments and the new clause, the stand part element has to be
opposed.
Lynne
Featherstone: Thank you, Mr. Benton. All help
towards my understanding procedures is gratefully received. I intend to
divide the Committee on clause stand part.
Question
put, That the clause stand part of the Bill.
The
Committee divided: Ayes 10, Noes
3.
Division
No.
3] Foster,
Michael Jabez (Hastings and
Rye)Question
accordingly agreed to.
Clause 59
ordered to stand part of the Bill.
Clauses 60
to 63 ordered to stand part of the
Bill.
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