Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Equal Remuneration Convention, 1951 (No. 100) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1971)

The Committee notes the observations of the Trade Unions Congress (TUC) received on 30 August 2021 and the Government’s reply.

Articles 1 and 2 of the Convention. Assessing and addressing the gender pay gap. The Committee asked the Government to provide: (1) detailed information on the evolution of the gender pay gap and the measures adopted to address its underlying causes; and (2) statistics on the prevalence of overtime, disaggregated by sex and sector of employment. In its report, the Government refers to the data published by the Office of National Statistics (ONS) in the 2020 Annual Survey of Hours and Earnings (ASHE) and indicates that the gender pay gap among all employees has decreased from 17.4 per cent in 2019 to 15.5 per cent in 2020, being the lowest recorded measurement since the survey began in 1997. The gender pay gap for full-time employees has decreased from 9 per cent in 2019 to 7.4 per cent in 2020 and the gender pay gap for part time employees to minus 2.9 per cent. The part-time gender pay gap for part-time workers is therefore in favour of women. The Committee notes that, according to the ASHE, the widest pay gaps are found in the following occupations: precision instrument makers and repairers (46 per cent), production managers and directors in mining and energy (38 per cent), IT engineers (36 per cent), financial institution managers and directors (34 per cent), electronical and electronics technicians (31 per cent), health associate professionals (31 per cent), functional and financial managers and directors (30 per cent). The survey also indicates that the difference in pay is largest among higher earners, showing that the 90-percentile male employee (who earns more than 90 per cent of other men employees, but less than ten per cent) earns substantially more than the equivalent women employee. The Committee notes however that the figures presented in the ASHE exclude overtime from the calculations.

For Northern Ireland specifically, the Government provides the results of the 2020 Northern Ireland ASHE, with detailed statistics on the gender pay gap in the region. Pursuant to the survey, 2020 is the 11th consecutive year where full-time female employees in Northern Ireland earned at least as much as full-time males on average (46p more per hour). It is the only region where the gender pay gap for full-time employees is in favour of women. Considering all employees, the median female employees’ hourly rate is £1.01 lower than the median male employees’ hourly rate. The Committee also notes that the figures presented in the Northern Ireland ASHE do not consider overtime.

On the measures adopted, the Committee notes the Government’s indication that a significant cause of pay gaps is occupational segregation and it is therefore introducing a number of initiatives to make it easier for women to access high-paid jobs in all sectors, through the adoption of support programmes to this aim, such as specific protections for female-led-start-ups and new childcare support. The Government is also raising awareness on the STEM (science, technology, engineering, and mathematics) careers, through programmes such as “STEM ambassadors”, 45 per cent of whom are women. It is also funding a programme to support computer science teaching that includes a Gender Balance in Computing programme which aims to identify interventions that schools can implement to improve girls’ participation in computing. The Government is also encouraging employers to offer initiatives such as flexible working and returners programmes which can improve prospects for both women and men. Noting this information, the Committee asks the Government to continue to provide detailed statistics on the evolution of the gender pay gap and information on the nature and the impact of the measures adopted to reduce such gap. In this regard, the Committee also refers to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) regarding equality of opportunity and treatment between men and women. Noting that the ASHE and the Northern Ireland ASHE do not consider overtime in the calculation of men and women’s respective hourly rates, the Committee asks once again the Government to collect and provide statistics on the prevalence of overtime, disaggregated by sex and sector of employment.

Pay inequalities. Private and public sectors. The Committee asked the Government to provide information on the gender pay gap reporting and its impact in reducing gender pay inequalities in the private sector as well as any measures taken to promote the principle of the Convention. The Government explains that the Gender Pay Gap Regulations 2017 apply in Great Britain to all employers with 250 or more employees and require them to publish and report to the Government on the gender pay gap. The Government stresses that, following the introduction of this obligation, over 10,500 employers report annually on the gender pay gap, bringing much greater transparency and prompting national awareness on the matter. The reporting programme has been extremely successful with 100 per cent compliance during the first two years of reporting. However, the Committee notes that, due to the COVD-19 outbreak in 2020 and the associated impacts on the workforce, the Government Equality Office (GEO) and the Equality and Human Rights Commission (EHCR) decided to suspend the reporting obligation on the gender pay gap for 2020. For 2021, it decided that employers would have an additional six months to report. The Government further indicates that to support employers, it has published advice on how to diagnose their pay gap and develop an action plan, alongside evidence-based guidance on practical actions to close the gap. With regard to Northern Ireland, section 19 of the Employment Act (Northern Ireland) 2016, gave powers to the Department for Employment and Learning to establish a mandatory system for employers to report gender pay gap information. The Government indicates that this section has yet to be implemented due to a combination of two factors: the lack of an executive in Northern Ireland from January 2017 to January 2019 and the ongoing COVID-19 pandemic. However, the Government assures that the Executive of Northern Ireland remains committed to the implementation of section 19 of the Employment Act (Northern Ireland) 2016, in the context of the development of a new Gender Equality Strategy which is due to be published, after the approval of the Executive of Northern Ireland, in December 2021.

Further to the Committee’s request concerning the implementation of the reporting obligation on the gender pay gap, the Government indicates that in England, the regulations which apply to public bodies are the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017. These impose reporting obligations in relation to the gender pay gap. Public bodies in Scotland and Wales are covered by separate regulations. It adds that very high levels of compliance in the public sector were seen during the first two years of mandatory gender pay gap reporting (96 per cent and 94 per cent respectively by the deadline, eventually rising at 100 per cent compliance). Due to the COVID-19 pandemic, the reporting obligation was suspended for 2020 and additional time was granted in 2021 for public bodies. The Government further indicates that all ministerial departments have published their action plans for reducing their gender pay gap, alongside the publication of their figures.

In its observations, the TUC indicates that there has been no progress concerning the issues raised in its previous observations regarding the low thresholds and lack of enforcement of reporting obligations on gender pay gaps. The TUC also expresses concern over the decision of the Government to push back the reporting deadline during the pandemic. For the TUC, this decision is part of a wider failure in the Government’s COVID-19 response to properly consider the impact of policy decisions on women. Specifically, the TUC is concerned that the Government is failing: (1) in its legal responsibilities, under the public sector equality duty, to ensure that its policies do not disadvantage or discriminate against women; (2) to carry out equality impact assessments on key policy decisions and to take into account the disproportionate impact of self-isolation on women, as fewer of them are eligible for statutory sick pay; and (3) to take into account the additional caring responsibilities placed on women as a result of health restrictions and policies on schools and childcare facilities closures. The Committee notes the Government’s indication in its reply to the TUC’s observations, that the statutory review of the gender pay gap reporting regulations will be completed by Spring next year. The Government adds that pay gap reporting: (1) is being used as a proxy measure to enable employees and employers to assess whether the pay is fair; and (2) increases internal transparency about pay, and how pay decisions are made. However, the Government stresses that, being hugely reliant on the quality and breadth of diversity data collected by organizations, pay gap information is seen as just one of a range of metrics that employers can use, and that the most meaningful metrics to indicate fairness will differ depending on the size, nature and location of the organization. Regarding the Public Sector Equality Duty, the Government indicates that it is taking a number of steps to drive effective action, through the Equality Hub that coordinates a working group promoting compliance and sharing expertise, resources and best practice and that provides advice. The Government recalls that the legal requirement in the Equality Act is simply to have “due regard” to the matters set out in the Public Sector Equality Duty and that no specific action is prescribed to demonstrate that “due regard” has been had, though the courts have made it clear that recording the steps taken by the decision maker in seeking to meet the duty is an important evidential element in demonstrating legal compliance and that a systematic approach is good practice. With respect to the impact of the COVID-19 pandemic on equality, the Government states that it has offered an unprecedented level of support to both individuals and businesses during this pandemic, such as the Self-Employed Income Support Scheme (SEISS), and carefully considered the equality impact of both individual measures and fiscal events on those sharing protected characteristics, including gender. With regard to the evaluation of Shared Parental Leave and Pay, the Government adds that: (1) the fieldwork for much of the research was completed in February 2020; (2) the data are currently being processed; and (3) analysis of this data which will be published, has taken longer than expected due to the impact of COVID-19. The Committee notes this information. In this regard, the Committee stresses the disproportionate impact of the pandemic on the employment situation of women: in most countries, they have suffered greater rates of job loss generally and face significantly higher rates of unemployment than men. Moreover, women are over-represented in high-risk sectors, such as in care work, where demand for their services has increased due to the pandemic. As a result, they have been required to work excessive hours while also continuing to shoulder the primary burden of unpaid care work (General report of the Committee of Experts, adopted in 2020, paragraph 45). The Committee asks the Government to continue to provide detailed information on the measures adopted to address and raise awareness on pay inequality in the private sector. The Committee also asks the Government to provide detailed information on the impact of the COVID-19 pandemic in relation to comparative rates of job loss among women and men; comparative rates of unemployment; the income of women and comparative work force participation in specific high-risk employment sectors where demand for services has led to required excess hours worked, and to provide information on whether the gender pay gap has widened because of the pandemic. The Committee asks the Government to provide information on the findings of the evaluation of Shared Parental Leave and Pay. It also asks the Government to provide information on the main causes of gender pay gaps identified in the public sector and the results of the action plans adopted to reduce these gaps. The Committee also asks the Government to provide specific statistical data on pay levels in the public sector, disaggregated by sex and occupations.

Article 3. Pay audits. The Committee asked the Government to provide information on any case of application of the provisions of section 139A of the Equality Act 2010 and of the Equality Act 2010 (Equal Pay Audits) Regulations 2014 on the possibility for an employment tribunal to order the employer to carry out an equal pay audit. The Government indicates that it is not aware of whether or not these provisions have been used, as most cases do not result in a judgment, either because they are settled outside courts or withdrawn. Recalling that equal plan audits are an important means of promoting and ensuring the implementation of the principle of the Convention, the Committee again asks the Government to indicate in some detail whether and how these tools are being used by the Employment Tribunals.

Articles 2(2)(c) and 4. Collective agreements. Cooperation with social partners. The Committee has repeatedly asked for information on any cooperation initiatives with social partners as well as any collective agreement that includes equal pay issues or promotes the principle of equal remuneration for men and women for work of equal value. The Government indicates that it has supported the business-led and voluntary Hampton-Alexander review published in February 2021 into increasing the number of women in senior positions in the Financial Times Stock Exchange (FTSE) 350 companies. It also refers to the Sector Deals that are partnerships between the government and industries on sector-specific issues and indicates that a number of sector deals include ambitious commitments to increase the proportion of women. The Government further indicates that it met with the TUC to discuss gender equality legislation, evidence-based actions for employers and the TUC’s actions on gender diversity. The Committee recalls the importance of ensuring that the provisions of collective agreements do not result in indirect wage discrimination against women and that introducing equal pay clauses in collective agreements can be an efficient step to addressing the issue, (General survey of 2012, paras. 694 and 729). While taking note of the information provided by the Government, the Committee once again asks the Government to indicate whether and how collective agreements take into account the principle of equal remuneration for men and women for work of equal value (such as through the introduction of objective job evaluation methods in the agreements, or the inclusion of equal pay clauses). It further asks the Government to continue to provide information on the manner in which it cooperates with workers’ and employers’ organizations to give effect to the principle of the Convention.

Enforcement. The Committee had asked the Government to provide information on any new development regarding the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 that had been quashed by the Supreme Court. The Committee takes note of the Government’s indications that the Ministry of Justice has frequent discussions with the Department for Business, Energy and Industrial Strategy on many aspects of Employment Tribunals and that no final decision has been made regarding the re-introduction of fees, on which any formal proposal would be subject to a public consultation process. Furthermore, as stated above, the Committee takes note of the Government’s indication that most cases do not result in a judgment, either because they are settled out of courts or withdrawn. The Committee stresses that the judicial process of individual complaints to courts or labour tribunals, including providing appropriate remedies and imposing sanctions, is an important feature of the enforcement of the Convention and that courts and tribunals have a crucial role in developing jurisprudence furthering the principles of the Convention, and in providing remedies including orders for equal remuneration, compensation, and reinstatement (see 2012 General Survey, paragraph 883). The Committee therefore asks the Government to adopt measures to ensure the efficiency of the remedies available, both in the private and public sector, before the Employment Tribunals and to provide detailed information on the number of complaints brought in relation to equal pay, as well as on the outcome of these cases (including on the number of settlements, number of withdrawals or dismissals, sanctions imposed and compensation granted).