On 29 May 1970, 50 years ago today, the Equal Pay Act 1970 was given Royal Assent. This was a landmark moment in the fight for equal pay in the UK.
However, 50 years on the UK’s overall median gender pay gap is still 17.3%. While unequal pay is only one factor that contributes towards this gap, many argue that the UK’s equal pay legislation is outdated, ineffective and in need of reform.
This Insight looks at the history of the Equal Pay Act, how the law works today and how it might be reformed in the future.
History of the Equal Pay Act 1970
The struggle for equal pay began long before 1970. One of the first major disputes was the Match Girl’s Strike in 1888 where over 200 girls and women went on strike to protest the exploitative working conditions at the Bryant & May match factory. That same year, the TUC passed a resolution calling for women to be paid at the same rate as men for the same work.
In the UK, the trigger for the passage of the Equal Pay Act was the 1968 strike at the Ford factory in Dagenham. 850 female sewing machinists went on a lengthy strike because they were paid 15% less than their male colleagues, despite doing the same work.
In 1970, the Labour Employment Minister Barbara Castle, who had backed the Ford sewing machinists, introduced the Equal Pay (No. 2) Bill. The Bill received Royal Assent on 29 May becoming the Equal Pay Act 1970 (EqPA). However, the Act did not come into force until 29 December 1975, the same day as the Sex Discrimination Act 1975 (SDA).
Development of the law
The EqPA provided a contract-based solution to the issue of unequal pay. All employment contracts would be taken to include an ‘equality clause’. Where any part of a woman’s contract was less favourable than the contract of a male comparator who did the same work or work rated as equal, the clause would automatically modify her contract to bring it in line with his. So a claim for equal pay was actually a claim for back pay because the modification was taken to have already happened. Under the EqPA as enacted, women could only claim for pay going back two years.
The UK’s membership of the EEC (now the EU) had a significant impact on equal pay law. Following legal action by the Commission in 1982, the UK had to amend the EqPA so that it also applied to cases where men and women did “work of equal value”.
A judgment from the European Court of Justice in 1999 led to the UK removing the two-year limit on back pay claims. The famous Enderby case allowed equal pay claims to be brought where statistics showed a difference in pay between jobs of equal value, even if the discriminatory cause of that difference could not be identified.
In 2010, the EqPA and other pieces of equality legislation were consolidated in the Equality Act 2010 (EqA), although the law on equal pay remains substantially similar.
In 2017, the UK introduced legislation on mandatory gender pay gap reporting for all employers with more than 250 employees.
How the law works today
The rules in the EqA are similar to the EqPA and are based on a ‘sex equality clause’. Claimants need to identify a real comparator of the opposite sex in the same employment whose contract is more favourable than theirs.
The rules on comparators are complex, especially when comparing across establishments. Later this year, the Supreme Court is set to hear an appeal in the Asda case which involves a claim brought by thousands of female store workers citing male depot workers as their comparators.
Even if there is unequal pay, employers can argue that the difference in pay is not related to sex. For example, it could be because of a skills shortage or geographical location. The burden is on the employer to prove this. Earlier this year, Samira Ahmed won an equal pay claim against the BBC. The Employment Tribunal found that the BBC had not provided sufficient evidence to justify Jeremy Vine’s higher rate of pay.
Has equal pay legislation been effective?
The general view among stakeholders is that equal pay law has not been effective in fully addressing equal pay issues or in closing the gender pay gap.
This month, the Guardian reported figures from law firm DLA Piper which show that employment tribunals in England and Wales still receive an average of 29,000 equal pay claims each year.
Importantly, equal pay law only addresses unequal pay between individual women and men doing equal work for the same employer. The gender pay gap measures the difference in the average hourly wage of all men and women in work.
As shown in the chart below, the mean gender pay gap for full-time employees decreased sharply in the years after the EqPA, followed by a more gradual decline. However, a significant gap remains.
Why are women more likely to be paid less than men?
In 2016, the Women and Equalities Committee published a report outlining some of the main causes of the gender pay gap:
- The part-time pay penalty
Women are more likely to work part time, and part-time workers are paid less. In 2019, 5.4 million women worked part time compared to 1.6 million men.
Gross median hourly pay for part time workers was £9.94 in 2019, compared to £14.88 for full-time workers.
- Occupation segregation
Women tend to work in lower paid occupations and sectors.
The chart below shows a higher share of women employed in the lowest paying occupations: 28% of women compared to 13% of men. Conversely, high-paying occupations employed 18% of women but 26% of men.
- Caring responsibilities
The full-time gender pay gap only becomes significant when women reach their 40s.
According to the Institute for Fiscal Studies (IFS), this may be because women begin to take time out to care for children or elderly relatives in their 30s and 40s which affects their earnings when they return.
Calls for reform
A joint report by the TUC, the Fawcett Society, Unison and the Equality and Human Rights Commission in 2010 called for a “root and branch” reform of the equal pay law. It criticised how the law largely requires individual women to bring claims rather than allowing collective action. It also called for greater obligations on employers, such as mandatory equal pay audits, and for penalties for those found to have breached equal pay law.
Many argue that equal pay law is limited by women having to point to real contemporaneous comparators while sex discrimination claims can be based on hypothetical comparators. The Labour Government chose not to change these rules in the Equality Act 2010.
This year the Fawcett Society launched a campaign calling for women to have a ‘Right to Know’ what their comparators are being paid. This follows high-profile cases such as that of BBC journalist Carrie Gracie who only found out she was being paid unequally after the BBC was forced to publish salary information in 2017.
The Fawcett Society also called for a range of other reforms, including mandatory ethnicity pay gap reporting to gain better data on the intersectional aspects of the gender pay gap. The table below shows the pay gap between women from a number of ethnic backgrounds and men of the same ethnicity, as well as White men.
Source: Fawcett Society Gender pay gap by ethnicity in Britain, March 2017
Equal pay: Statutory Code of Practice, Equality and Human Rights Commission.
Why women need a right to know: Shining a light on pay discrimination, Fawcett Society.
The gender pay gap, House of Commons Library.
How much less were women paid in 2019?, House of Commons Library.
Gender pay gap by Ethnicity in Britain, Fawcett Society.
About the authors: Brigid Francis-Devine specialises in economic policy and statistics and Daniel Ferguson specialises in employment and equality law at the House of Commons Library.