Dynamite or Damp Squib?—An Assessment of Equal Value Law
| Published date | 01 September 1996 |
| Author | Jeanne Gregory |
| DOI | 10.1177/135822919600100402 |
| Date | 01 September 1996 |
International
Journal
of
Discrimination
and
the
Law,
1996,
Vol.
1,
pp.
313-333
1358-2291/96
$10
©
1996
A B Academic Publishers. Printed in Great Britain
DYNAMITE
OR
DAMP
SQUIB?-AN
ASSESSMENT
OF
EQUAL VALUE LAW
JEANNE GREGORY
Director, Gender Research Centre, Middlesex University, UK; founder
member
of
the Pay Equity Project
ABSTRACT
Recognising the potentially explosive impact
of
the law on equal pay for work
of
equal value, the article examines the ways in which the legislative framework
itself, in combination with some far-reaching changes in the organisation
of
the
labour market, has had a stultifying effect on this potential.
It
considers some key
developments in UK case law and assesses the impact
of
some landmark decisions
from the European Court
of
Justice. The article focuses on three specific areas.
First, it examines new developments in job evaluation, where, despite a growing
appreciation
of
the ways in which gender bias occurs, employers have retained the
initiative, largely due
to
the 'job evaluation bar', which discourages close scrutiny
by industrial tribunals. Second, the article looks at the legal defences available
to
employers, particularly the 'market forces' defence, and argues that such defences
cut across the principle
of
equal pay, both substantively and procedurally. Third,
the growth in merit payment systems and evidence of their potential gender bias
is examined. The article concludes that equal pay law is in need
of
a fundamental
overhaul
if
it is to meet the challenges
of
the contemporary labour market.
INTRODUCTION
In the autumn
of
1983, when the Equal Pay Act was amended
in fulfilment
of
the requirements
of
European law, David Wainwright
wrote an article entitled
'Why
equal value is dynamite for pay struc-
tures' (Wainwright 1983). It was dynamite,
he
explained, because it
enabled workers to claim equal pay with fellow workers
of
the
opposite sex employed
on
different work, even
if
they were not part
of
the same grading scheme
or
bargaining unit; consequently,
job
segregation no longer protected employers from equal pay claims. It
was dynamite because employers would not be able to provide a pre-
cise
or
rational explanation for pay differences which had a complic-
ated history, encrusted with traditional views about the role
of
men
and women in the labour market and with gendered notions
of
skill.
Twelve years on, the full explosive potential
of
the concept
of
314
equal pay for work
of
equal value has yet to be realised. Ironically,
the gender pay gap narrowed by more percentage points in the
decade following the passing
of
the Equal Pay Act 1970 than in the
decade following the enactment
of
the Equal Pay (Amendment)
Regulations 1983, introducing equal value.1 This is partly because the
earlier law was directed at the most blatant forms
of
discrimination,
in which men and women were paid at different rates for the same
or broadly similar work and partly because incomes policies were
having a redistributive effect in any event. Not only is equal value a
much more sophisticated concept, it was introduced in an economic
and political climate generally resistant to any form
of
labour market
regulation.
Because the
UK
government prefers wages to find their own
level in a 'free' market, Article 119 EEC, together with the Equal
Pay Directive 75/117/EEC (OJ L45/19), has proved crucial for ensur-
ing progress on equal pay. The government made no attempt to dis-
guise its hostility towards the concept
of
equal value and introduced
it into
UK
law with considerable reluctance in the wake
of
a decision
of
the European Court
of
Justice (ECJ)2• This antipathy is reflected
in the regulations, which are not 'user friendly'. The procedures are
exceedingly complex, creating legal quagmires for employees and
potential escape routes for employers while providing, on paper at
least, a minimal and grudging compliance with European Community
(EC)
law.
Despite these difficulties, there have been a number
of
success-
ful claims, in which the requirement to interpret the provisions in
accordance with EC law has often proved decisive. Against this
background, trade unions have also had some success in negotiating
pay settlements on the basis
of
equal value principles without the
need for litigation. However, these positive developments stand in
stark contrast to the general direction
of
labour market policies
during the same period, policies which pull systematically in the
opposite direction, neutralising and even reversing the potential gains.
We are currently witnessing a dramatic shift towards a cas-
ualised and deregulated labour market, achieved through a series
of
linked policies, including privatisation and compulsory competitive
tendering (CCT); the widespread use
of
short term contracts and part
time 'flexible' working, to the point where these are becoming
normal, rather than 'a-typical' working practices; a series
of
measures
designed to weaken the powers
of
trade unions, together with the dis-
mantling
of
national systems
of
collective bargaining and a shift to
locally negotiated pay. The abolition
of
wages councils on the one
hand and the introduction
of
merit payment systems on the other is
producing a greater polarisation between low paid and highly paid
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