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Is litigation the way forward to address the undervaluation of women’s work?

In the UK, the gender pay gap has been declining slowly over time. Over the last decade it has fallen by approximately a quarter among both full-time employees and all employees. In 2021, the gap among full-time employees was 7.9%. The largest fall since before the pandemic is among women holding higher-paid managerial roles (managers and directors), from 16.3% in 2019 to 10.2% in 2021. Other studies, however, suggest that the situation worsened for low-paid women since the start of the COVID-19 pandemic. Many of them have lost their jobs and remain without work. While there has been some recovery in the labour market, there is still a long way to go to reach pre-pandemic employment highs. Moreover, the front-line workers who have continued to work during the pandemic, particularly in the health and care sector, are still waiting for the pay rises they request and deserve.

Despite the recent introduction of mandatory reporting and some form of responsive regulation in the public sector, many scholars believe that UK legislation aimed at tackling the gender pay gap “has no teeth” and is focused on monitoring the problem but not actually fixing it. The embedded voluntarism on which successive governments have based their policies is questioned in a context where both equality agencies and trade unions have seen their powers weakened over time.

However, what is rarely mentioned is the role of litigation in the fight for equal pay has since the 1970s and in the following decades. Successive waves of litigations have not only led to pioneer pieces of legislation, such as the 1984 equal value amendment, but have also contributed to the implementation of rights.  The repeated mobilisation of the courts has helped increase the judicial receptivity of certain legal arguments and proceedings, such as those based in European law, and supported the development of a strong body of case law, while increasing claimants’ chances of having their cases heard and settled, even though claims have continued to be strongly fought by employers.

 

Unions and litigation

The role of trade unions in these legal mobilisations is also interesting. While they have often dragged their feet on mobilizing the courts, they have gradually developed their own financial and legal resources to deal with the influx of claims and to avoid accusations of failing to defend the interest of their female members. The relationships between litigation and collective bargaining have proved more complex and controversial. Litigation has developed on the back of discriminatory collective bargaining practices but, without the existence of collective agreements, it is doubtful that pay arrangements would have been sufficiently transparent for litigation to be launched. In the public sector, litigation has helped to secure bargaining outcomes by forcing employers to negotiate large-scale grading and pay agreements, therefore delivering tangible gains for some highly disadvantaged groups – white women in the 1970s-90s and BAME women in the 2000s – who are over-represented in low-paid jobs in the public sector.

Despite increasingly supporting litigation, unions have constantly sought to explore alternative political opportunities, whether it is campaigning for more progressive social policies or the search for a solution through collective bargaining, sometimes combined with industrial action. Recourse to justice has always been conceived as a stopgap or provisional moment in the balance of power aimed at producing the conditions for favourable negotiations. This preference for more conventional repertoires of action can be interpreted as a normative belief or as a pragmatic choice aimed at regaining control over dispute resolution through institutionalized mechanisms that still exist in the public sector in the UK. In addition to bringing only individual remedies, trade unions have found the management of equal pay cases extremely costly and challenging, notably when it comes to providing evidence.

 

Equality bargaining

Proving unequal pay requires stable and large organizational contexts where careers and wages are evolutive and organized according to collective classification systems that allow job comparison. This is a prerequisite that is increasingly difficult to satisfy in contexts characterized by restructuring, privatisation, and the individualisation of employment contracts, including in public services. Moreover, the cost of equal pay settlements has constrained and stalled the implementation of collective agreements, notably in local government. Most collective agreements, and the job evaluation methods on which they are founded, have now aged, and deteriorated. Recent research has shown that the scope of equality bargaining has contracted both in the public and private sectors.

While the litigation route has shown its limits, the use of antidiscrimination legislation remains an undeniably precious resource for those who strive to promote equality. Over the last 20 years, the advances in the defence of low-paid women’s rights, whether in terms of equal pay or part-time employees’ rights have been the product of a collective mobilisation of the law, supported by specialized law firms. Major litigation in the retail sector is still in progress. A lawsuit involving 35,000 Asda employees initiated in 2016 (with the initial support of GMB) has paved the way for similar claims in the sector (Tesco, Sainsbury’s, Morrisons, Co-op and Boots). These claims were possible because collective agreements still exist in this sector and EU law could still be used; a leverage that will soon disappear following Brexit. Like previous waves of litigation in the public sector, they have therefore benefited from circumstances that have become exceptional in the UK, while facing the same legal hurdles, particularly in relation to comparators and comparability, disclosure of information and remedy.

 

The great inertia of collective bargaining

What is striking when one adopts a socio-historical perspective, as I did in my book, is that despite all the debates on the limitations of the law and individual rights, litigation efforts seem to have had greater effects than the production of rules and regulations through collective bargaining or legislation. This observation should encourage to reflect more on how collective bargaining, litigation, responsive regulation and industrial action can operate together, complement, or replace each other, depending on contexts. An overly naive belief in the value of social partnership or reporting requirements in a context of austerity and now the COVID-19 pandemic, overlooks the great inertia of collective bargaining practices and the difficulty unions, employers and governments seem to have in making equal pay (and more generally equality) a priority.

 

Cécile Guillaume is a Reader in Organisation Studies at the University of Surrey. Her new book Organizing Women has recently been published by Bristol University Press.

 

Image credit: Orbon Alija