There’s no reason why women shouldn’t be equally represented and treated in the workplace, says Mark Stevens, an associate at law firm VWV. However, as employment tribunal cases and statistics indicate, women still battle male domination on a daily basis
It is widely accepted that many elements of the transport sector remain very much male-dominated and that some companies can struggle to draw women into positions at all levels within a business. Indeed, as Women in Transport note, women make up 47% of the UK workforce but only account for 22% of transport workers. [wlm_nonmember][…]
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A House of Commons report from April 2018, The Gender Pay Gap, found the figure to be nearer 19%. With gender pay very much in the public eye, what steps should employers consider taking to try to address any disparity in female representation within their workforce?
Setting the scene – the gender pay gap
Much has been reported in the news recently about the gender pay gap. With the deadline having passed earlier this year for qualifying employers to publish their first gender pay gap report, what are the reporting obligations and what did the results tell us about gender pay within the UK as a whole?
The pay gap reporting obligations
Under the gender pay gap reporting regulations, all public, private and charity sector organisations employing 250 or more employees are now required to report annually on the average pay gap between their male and female employees. The ‘average’ is calculated and reported on in two ways:
- As a median, being the middle point between the top and bottom range of pay; and
- As a mean, being the total amount paid to male and female employees, divided by the number of people in each group.
This is an annual obligation, with a reporting deadline of 30 March each year for public sector employers and 4 April each year for private companies and charities.
There is an option to provide a written narrative alongside the published gender pay gap figures. This provides a valuable opportunity to put figures in context, explain the reasons behind the results and set out details of any actions being taken to reduce or eliminate the gender pay gap within an organisation. It is also a good opportunity to highlight any positive results or success stories.
What does the published data show so far?
Over 10,000 organisations published their reports by the deadline while around 1500 didn’t meet their date. The figures revealed that over 75% of those organisations pay men more on average than they pay women across their organisation. Across sectors, the ‘transportation and storage’ sector actually presented one of the best median pay gaps with nearly zero pay gaps. However, it is important to put this statistic in perspective and draw a distinction between a gender pay gap and unequal pay between men and women, because the report doesn’t single out coaches and buses from other modes or sectors. And with so few women in the sector it’s not very surprising that the gap is minimal.
As set out above, the data published represents the difference between the average pay of men and the average pay of women at the date the data is captured, on 5 April every year. Pay equality on the other hand, is the difference between how much men and women are paid, on a like-for-like basis, for carrying out the same or similar work and there is a long-standing legal requirement for there to be pay equality. Whilst a gender pay gap may be symptomatic of a wider issue, i.e. fewer women being employed in the highest paid positions compared with men, the reported gender pay data is not necessarily an indicator of pay inequality between men and women doing the same or a similar role within an organisation.
The gender pay gap statistics will represent a snap-shot of gender pay at any one time. Before publication, the gender pay gap information will have been signed off by a senior person in the organisation at director or equivalent level. This may have led to the organisation scrutinising the gender pay gap information at board level for the first time and has put the spotlight on the issue. Whether it encourages action within organisations to address a gender pay gap will only be seen over a period of time. There is a risk that the reporting obligation is seen simply as another annual compliance issue and any work needed to address an organisation’s gender pay gap during the year is not prioritised.
For those organisations who have decided to prioritise addressing a gender pay gap, work may well be underway to examine the reasons for the gender pay gap and what can be done. Common themes amongst employers include a review of their flexible working practices, reviewing maternity and paternity leave policies and tackling bias, both conscious and unconscious.
So aside from addressing pay disparity, what other proactive steps can an employer take to encourage women into roles within a business where they are currently a minority?
Positive Action v Positive Discrimination
You may have heard the term ‘positive discrimination’ used in reference to treating one group of people more favourably, on the basis that they have a protected characteristic, compared to another group who do not have that characteristic. Under the Equality Act 2010, there are a total of nine protected characteristics, these being age, sex, disability, pregnancy and maternity, gender reassignment, marriage and civil partnership, race, religion and sexual orientation.
Whilst the phrase ‘positive discrimination’ is commonly used, positive discrimination on the grounds of a protected characteristic is in fact unlawful (except in certain very limited situations).
Positive action on the other hand, is lawful under the Equality Act 2010. This is the process of taking certain steps to assist groups who share a protected characteristic and are under-represented or disadvantaged in employment. There are two avenues of positive action which are available to employers; general positive action and positive action in recruitment and promotion.
Positive action in recruitment and promotion enables an employer to lawfully give preferential treatment to one candidate with a protected characteristic over another candidate who does not have that characteristic, where the two candidates are equally qualified for the promotion or appointment.
In the context of supporting women into roles within the building sector, positive action therefore enables an employer to lawfully offer a role to a female candidate over a male candidate where they are otherwise indistinguishable in terms of merit, without fear of a discrimination claim.
Such positive action will only be lawful where an employer reasonably thinks that women suffer a disadvantage connected to being female or are disproportionality underrepresented in the workforce, and where the action taken is a proportionate means of enabling or encouraging women to overcome or minimise the disadvantage or participate in the workforce. If the male candidate is more qualified for the position, this would be unlawful discrimination.
It is important to be aware that a blanket policy of treating people with a shared protected characteristic more favourably than those who do not, regardless of qualification or merit is not permitted.
Whilst positive action may be considered useful and appropriate within some organisations, it is entirely optional and there is no legal obligation on employers to take positive action. Employers who do take positive action should continually keep the arrangements in place under review to consider whether they continue to be necessary and proportionate.
Unconscious bias
Another issue that can lead to a lack of representation of women, or other minorities, in senior positions or roles frequently given to men is the issue of unconscious bias. In terms of recruitment, there is often a danger that an interviewer is unconsciously drawn to a candidate who shares characteristics with themselves. A male employer may unconsciously prefer a male candidate over a female candidate for a job or promotion, even where they are both equally qualified, and therefore perpetuate the cycle of a lack of diversity within an organisation.
To help to combat this, employers should consider conducting recruitment processes with a panel of at least two people, ideally including people with different characteristics, backgrounds, or experiences to help to eliminate bias.
Businesses should ensure that all employees, particularly those in senior management or at board level, undertake unconscious bias training or workshops that aim to identify and tackle bias.
Consideration should also be given to a business’s ‘family friendly’ policies that make it easier for women to join or re-join the workforce or progress within their careers. For example, employees with at least 26 weeks continuous employment within an organisation now have a statutory right to request flexible working. This may be particularly appealing to women trying to balance the pressures of work and family life or child care. Any requests for flexible working should be considered fairly and reasonably and responded to within three months.
Other policies and practices to consider reviewing include homeworking, maternity, paternity and shared parental leave policies, programmes supporting women returning to work after a career break and training or initiatives such as targeted networking opportunities and mentoring opportunities to help women progress into senior roles.
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