The equaliser

Reports that the Women and Work Commission is to recommend that the government consider allowing class actions for gender pay disputes has got industry talking. In general, unions say they would welcome the move.

Public sector union Unison said the move “would be in line with our objectives”.

Brian Strutton, national secretary for public services at the GMB, claimed class actions would allow gender pay cases to be dealt with “more efficiently and expeditiously” and that they would be the “catalyst to bring about the change in culture needed to end job segregation.”

However employment lawyers paint a far more complicated picture.

At law firm Halliwells, professional support lawyer, Chris Davies said the circumstances prior to recruitment are unique for individual employees and, therefore, to try and group cases together into one class “may be a short-cut that could result in injustice to employers.”

This point is picked up by Julie Quinn, partner at international law firm Allen Overy. In the public sector, for example, there are defined bandings that make it easier to identify where people designated to be doing the same type of job are taking home different wages, she said.

But in areas such as the financial sector, the size of an employee’s pay packet depends greatly on what they have negotiated with the employer and the market they work in.

In the US, where class actions already exist, Henry Morgenbesser, a partner in Allen Overy’s New York office, said that since the Equal Pay Act in 1963, class actions for pay discrimination have been few and far between.

They are more likely to occur, he said, in product liability cases, such as claims against the use of asbestos or silicon implants, or environmental cases.

However, one high-profile pay discrimination class action is currently going through the courts, where retail giant Wal-Mart is battling a gender bias lawsuit against more than 200,000 current and former female employees who claim they were paid less than male colleagues.

But, rather than accelerate the process, Morgensbesser warned that class actions for pay and sex discrimination are multiple-year affairs. With firms standing to lose so much they contest every accusation, he said.

The Wal-Mart case is already four-and-a-half years old as lawyers continue to dispute whether all the woman qualify as one single class or whether the case must be tried at a store level.

And while the lawyers profit and employers dig deep into their pockets, there’s no evidence to show the threat of class action actually reduces the pay discrepancy that exists between the sexes.

According to the latest statistics, despite allowing class actions, the gender pay gap in the US is still greater than in the UK.

Last year’s US Census Bureau report that shows for every $1 a male worker earned, their female counterparts received about 77 cents does not compare favourably with last week’s figures from the Office of National Statistics which revealed British women now receive 83p for every £1 men make.

“Class actions are not a silver bullet,” said Richard Wilson, head of business policy at the Institute of Directors.

He doesn’t see class actions triggering a flurry of court cases against employers. “The reasons for the pay gap are societal and rarely to do with the attitudes of employers,” he said.

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