Britain’s equality laws are in a bad state. After 14 years of Conservative Government, not only was the 2010 Equality Act not repealed or amended, but the Conservatives actually expanded the legislation, courtesy of the 2017 Mandatory Gender Pay Equality Act.
Fortunately, the Westminster political class finally seems to be noticing a problem with much of the equality-driven legislation. The globally embarrassing Birmingham bin strikes have highlighted just how badly the Equality Act can be interpreted. Birmingham City Council cut a £6,000 pay promotion job from binmen because it could result in equal value pay claims from the predominantly female office staff. Similarly, clothing chain Next faces a £30m payout for paying their mostly male warehouse staff more than their mostly female retail staff for “equal value” work. What the political class has not realised, however, is that these absurd equal pay laws came (in the most part) from the European Union.
Most people, hearing the phrase “equal pay”, assume it to mean banning worse pay for someone doing the same job because of their sex, skin colour, or some other immutable characteristic. Equal pay legislation, however, has metamorphosed into something completely different to that.
When the tribunal judges ruled in the Next case that equal pay legislation had not been adequately observed, they accepted that direct sex discrimination was “no part of the reason, or motivation, for the difference” in pay between retail and warehouse. Next paid warehouse staff more solely because it is harder to employ someone to work in the physically demanding, less glamorous warehouses compared to the customer-facing shop fronts. The judges ruled that this reasoning was not good enough — the jobs were of “equal value” because of reasons of “effort, skill and decision-making”, and so Next must pay them the same.
Equal pay for equal value legislation was originally introduced because of Britain’s membership of the European Community (EC)
It is often assumed that all this comes from the 2010 Equality Act, but the truth is that the Equality Act mainly consolidated much of these absurd equal pay laws. As few people have noted, equal pay for equal value legislation was originally introduced because of Britain’s membership of the European Community (EC).
When Barbara Castle introduced Britain’s first equal pay law in 1970, she explicitly rejected “equal pay for work of equal value”, calling it “too abstract a concept to embody in legislation without further interpretation.” Her Equal Pay Act only outlawed work rated as equivalent. The Act was also necessary to bring Britain in line with equal pay requirements in the Treaty of Rome, thereby allowing British entry into the European Community.
Fast forward to 1982, and Britain lost a court case in the European Court of Justice (ECJ) against the EC. The judge ruled that the United Kingdom “denied the right to equal pay for work of equal value”, as necessitated by an EC equal pay directive from 1975. As Britain had by then joined the EC, the 1970 Equal Pay Act had to be amended.
This was irritating to the then pro-European Thatcher Government, who carelessly chose perhaps the worst junior Minister possible to introduce the legislation. Alan Clark, as well as being the Under-Secretary of State for Employment, was not enthused one bit by the legislation.
On the night of the introduction of equal pay for equal value laws in 1983, Clark attended a wine-tasting dinner. He first “tasted” a bottle of 61 Palmer, then “for comparison” a bottle of ‘75 Palmer then, back to the ‘61. Clark then puffed “a huge Havana” in his Ministerial car on the way back to the Commons.
The debate did not go well. Clark became the first and only ever Minister accused of being drunk at the Despatch box, a foul blot on any feminist history of equality legislation. As Clark himself recorded in his bestselling political diaries, the night was “terrible”, with some Tory MPs nearly voting against the Government due to the Minister’s performance. It may have been a disaster for Alan Clark (who was later promoted to Minister of State anyway), but Britain now had equal pay for equal value written in the statute book.
By 1998, the ECJ again expanded equal pay legislation in Britain. Mrs Levez, a betting shop manager in Essex, was found to be salaried £600 less than a man who had done the same job. However, under the then Equal Pay Act, Mrs Levez could only claim two years of back pay. This, the ECJ ruled, was too limited, and ruled that backpay had to be extended to six years.
The Labour Government responded with the Equal Pay (Amendment) Act 2003 which, enacted through a statutory instrument, was not even graced with a parliamentary debate. Despite their limited parliamentary scrutiny, these Europe-mandated Acts (although not being an exclusive EU competence) have had tremendous consequences, including effectively bankrupting Birmingham City Council.
Far from applying scepticism to the equality law, the new Labour Government has instead established a consultation to further expand it. If a forthcoming Equality (Race and Disability) bill is passed, equal pay for equal value claims can be expected for race and disability, as well as gender. This comes coupled with a new Equal Pay quango with the power to litigate employers. Activist lawyers, in other words, will become taxpayer-funded.
All this is not just incredibly muddled, but will not even address discrimination, as the tribunal judges in the Next case admit. By rejecting supply and demand, and assigning the value of work by abstract judgements of state officials over skill and effort, equal pay laws undermine a functioning economy. This has not just bankrupted Birmingham — it has the potential to bankrupt Britain.
Now the United Kingdom has left the European Union, Parliament has the sovereign power to amend this absurd equality legislation, and free the country from bad law. It is, if you like, a Brexit dividend — and will pay out handsomely if we repeal our post-1980s equalities law.
