8. New Defences to Equal Pay Claims: If a company has regular equal pay and skills audits, and job evaluation studies done by accredited experts it should be presumed that they have an absolute defence, if they have adjusted the pay of the women according to the recommendations with no penalty during the five years since the passing of the Act. So whilst it would still be possible to take a claim, it would be very difficult to prove discrimination, furthermore the individual taking the claim would have to pay the usual court fees.

9. Gagging Clauses: It should not be acceptable that individuals are offered settlements where it looks like they have been bought off in exchange for a gagging clause. Gagging clauses in settlements should illegal, as they are in whistleblowing cases. Furthermore, settlements should be signed off by tribunals.

10. We should empower women and make it easier for them to take cases to tribunals by making the procedures quicker and more straight forward. When our current system was invented 45 years ago it was supposed to be simple, informal and fast. A woman was supposed to be able to represent herself. We have moved a long way from that and cases now take many years. The experience of taking a claim is more akin to a very stressful wade through treacle.

11. Compensation for failure to pay equally should be restricted once more to two years: one by-product of the old Equal Pay Act being so closely aligned with individual contract law has been that the European Court of Justice has stated that a breach of the Act should attract compensation in a similar way to breach of contract. The upshot of this is that instead of awarding compensation of two years back pay as the original Act envisaged, the ECJ has ordered that compensation must be awarded for six years. By raising the stakes in this way, the ECJ has not encouraged the ease by which cases can be settled and our ability to effect change has been hampered. Restricting compensation to two years would be a pragmatic change which would help to allay fears in the business community that this concerted attempt to affect culture change would be too costly. If challenged in the ECJ, the UK would need to explain that compensation is being restricted as part of a coherent progressive policy drive to ensure gender pay equality. The provision for two years back pay could also relapse to six years after a five-year period, helping to focus minds on the urgent need to deal with the problem.

12. Fees for Equal Pay Claims should be abolished for five years: As part of this change of emphasis, we will need to encourage women to come forward with their grievances, not just for their sake, but for the sake of others. Claimants will become closely akin to whistle-blowers under this new system. We should therefore waive tribunal fees during what we hope will be a period of change.

13. Settlements: Negotiation is always better than litigation and another way of driving through workforce change. However there have been recent cases where Trade Unions have been taken to court by their members for what were seen as unfair settlements. In order to inspire confidence in collective agreements, there should be Codes of Practice within the new Equal Pay Act and potentially guidance from ACAS.

14. Prevent outsourcing, agency-working and bogus self-employment being used to circumvent equal pay: The old Equal Pay Act never envisaged an employment market as we have today and only provides a very clunky response. Any new Equal Pay Act will need to be fit for the modern day. It must restore and strengthen guarantees on terms and conditions for public sector workers transferred to private sector; close loopholes in agency worker regulations; and create statutory rules against sham self-employment.

15. Pay Audits and s.78: Labour’s very welcome commitment to bring into force, for the private sector, the dormant power conferred in s78 EA 2010 to introduce regulations that require employers to publish information relating to the pay of male and female employees needs careful attention to the details in order to ensure this is more than a “modest” change5. There should be an obligation to act on any disparities brought to light by the audit. The restriction to businesses of more than 250 employees obviously leaves out most businesses. Furthermore the duty to reveal pay information can be interpreted as falling short of a proper pay audit, which compares pay across each stratum of equivalent work. For the information revealed to be useful, it should be published by reference to grade and job title, not just gender and should also include other forms of pay beyond salary, such as bonus payments.

16. What these suggestions don’t tackle! Occupational Segregation: One of the more entrenched causes of the pay gap between men and women is occupational segregation, with nearly two-thirds of women employed in 12 occupation groups, most of which are related to women’s traditional role in the family (these include caring, catering, cleaning, teaching, nursing, clerical work etc)6. It’s as though women have left the kitchen, but they haven’t got very far!

17. The law on equal pay focuses on individual comparisons within the same employment, which critics say is “intensely myopic” and means that “gender segregation goes largely untouched.”7 Under the EP 1970 the claimant had to identify a male co-worker doing equal work for the same employer at the same or equivalent establishment. In practice, this was often extremely difficult, as the union Unison explained in its submission to the bill committee of the EA 2010: “Part of the cause of unequal pay is the low value assigned to occupations with high concentrations of women (so we pay our plumbers more than child carers), so the absence of a male counterpart can prevent some women from making legitimate claims.”8

18. Hypothetical Comparators: Unison called instead for “the use of hypothetical comparators in discrimination cases where no actual comparator exists.” Hypothetical comparators, which are used in other kinds of discrimination law9 and are recognised by EU law10, are gleaned from evidence of examples that are similar enough to the claimant to allow a meaningful comparison to be made. The Equality Act 2010 did allow for the use of hypothetical comparators for cases of direct discrimination in equal pay cases – that is to say, really blatant discrimination where a worker is basically told that they would be paid more if they were male - but not indirect discrimination, where the conditions and practices of a workplace combine to put female staff at a disadvantage11. The exclusion of hypothetical comparators from indirect discrimination cases has led commentators to predict that “although there have been changes to the law on comparators, the effect that the new provisions will have on equal pay and the gender pay gap is likely to be restricted.”12 The legislation could be amended to make it clear that hypothetical comparators can be used for both direct and indirect pay discrimination claims.