Equal Pay: Navigating the Thicket

Despite over 50 years of equal pay legislation in the UK, the gender pay gap stubbornly persists. This is in part due to its dependence on an individual complaints system demonstrably ill-suited to the task, both because respondents have been able to utilize procedural requirements to delay and prolong claims, and because of the ways in which the substantive rights have been formulated and interpreted. Given that many of these problems have been apparent for decades, it is apposite to consider the many equal pay cases presided over by Elias LJ between 2005 and 2009 when he was president of the Employment Appeal Tribunal. A close examination of these 20 cases reveals Elias LJ’s rigour, his patient commitment to unravelling an increasingly complex area of the law, but also his wry humour and pertinent social comments during the course of the journey. This article begins by setting the context and demonstrates the dysfunctionality of the complaints-led process as reflected in the cases canvassed. The article then turns to substantive issues, which despite their apparent straightforward wording, have been interpreted in increasingly complex and technical ways. The conclusion considers new developments and ways forward. The article demonstrates Elias LJ’s long-lasting contribution to both doctrine and principle in relation to equal pay. It also considers the impetus for reform created by the New Labour government and suggests ways in which the lessons learned during that period, as well as more recent developments from the European Union, could be translated into real improvements in equal pay legislation. It is hoped that the impetus for reform will release equal pay claims from sole reliance on individual complaints. Moreover, change needs to go well beyond the current anaemic proposals for pay transparency. Instead, a collective response requiring proactive measures by employers across the whole pay scale, with close participation by workers and their representatives, is urgently needed.