1.1 UNIFI is a TUC affiliated unionrepresenting some 160,000 workers across the finance sector. The union represents staff in all grades andoccupations, not only in the major English and Scottish banks, but also ininvestment banks, the Bank of England, insurance companies, building societies,finance houses and business services companies.
1.2 We welcome the opportunity to commenton the EOC consultation on the draft Code of Practice on Equal Pay. A good Code of Practice will be helpful inencouraging good equal pay practice if properly communicated and publicised.
1.3 However, we are disappointed that someof useful sections of the existing Code of Practice have been omitted in therevised version.
1.4 We are equally concerned that the Codeis aimed at employers when it is useful for employees, their representativesand other advisory organisations.Additionally, we are very disappointed at the lack of emphasis of thebenefits of the advice and working in conjunction with trade unions. We wouldask that the Code is amended to reflect these points.
2 Introduction to the Code of Practice on Equal Pay
2.1 The introduction states that the codeis aimed at employers, but employees and employee representatives may find ituseful. As stated in the introductionwe would recommend that this is altered to state that it is aimed equally atemployers, employees, their representatives and advice organisations such asthe Citizens Advice Bureau.
2.2 Clarificationneeds to be given as to what constitutes an employee representative. We would recommend that after the firstreference to employee representative is mentioned in the introduction anexample should be referred to, e.g. a trade union.
2.3 The emphasis on employers continuesthroughout the Code. We would arguethat advice for other stakeholders, as mentioned above, is vital due to thecomplexity of equal pay legislation.The whole code needs to be reviewed in light of this.
2.4 The relationship between the Equal PayAct, Sex Discrimination Act and the Part Time Workers Regulations should beexplained in the introduction. Inparticular, the vulnerability of part-time workers to unequal pay should benoted.
2.5 In general the code would benefit frommore cross-references to the Sex Discrimination Act, particularly the elementsof the employment relationship covered by this Act, which impact directly onissues of equal pay such as recruitment and retention.
2.6 In paragraph 7 of the introduction thewording of the first sentence after the coma in the first line should reflectthe wording of the Equal Pay Act s.1 (3) but only if there is a genuinereason for doing so which is not related to sex.
2.7 Paragraph 8 should emphasise thatcarrying out an equal pay review is the best way for an employer to avoid anequal pay claim. We suggest that theparagraph is re-drafted along the following lines:-
Employersare encouraged to introduce an equal pay policy and carry out an equal payreview. EOC guidance on how to conductan equal pay review as good practice is included in the Code. The best way for employers to avoid equalpay claims is to regularly review and monitor their pay practices, inconsultation with their trade unions.
2.8 The introduction should define thefull scope of the Code. At presentthere is an emphasis towards employers in the private sector. The scope of the Code should be defined toinclude:
Employers in both the public, privateand voluntary sectors
Employment before and aftercontracting out; and
Pay systems at the operational level.
3 Section One
3.1 The key points at the end of eachsub-section are confusing. A singlesummary at the end of each section or a single summary section at the end wouldmake this Section clearer.
3.2 It would be helpful to include morepractical examples to illustrate points. This would be useful for those who arenot familiar with equal pay concepts.
3.3 There is no reference to either thePart-time Workers or Fixed Term Contract Workers Regulations in paragraph16. It would be helpful to havesummaries of the relationship of both pieces of legislation with equal pay, aswell as brief examples of how this works out in practice.
3.4 The key points in paragraph 17 aremisleading and inaccurate. The followingchanges are suggested:-
British legislation has to be interpreted consistently with Europeanlegislation
A full listshould be given of pay and benefits covered by the Equal Pay Act and the SexDiscrimination Act
3.5 Paragraph 19 should include some guidanceon the choice of comparator with examples and or service should be added tothe end of the first sentence of the paragraph. The last sentence in this paragraph needs to be amended toreflect that the applicant is able to name comparators of equal work, like workor work rated as equivalent, prior to and after her employment and that thereis no time limit for making this comparison.
3.6 Applicants and their representativesshould be reminded in paragraph 19 that pay information can be sought from her employer,her trade union representative, the questionnaire procedure and possibledisclosures under employment tribunal procedures
3.7 It would be useful to include someexamples of successful equal pay cases, particularly for claims for work ratedas equivalent and of equal value.
3.8 Paragraph 19 should make it clear thatalthough it may be useful for the comparator to attend the tribunal voluntaryto give consent, his consent to being named as a comparator is notrequired.
3.9 The heading of Paragraph 20 should beSame Employment or Service and the word only should be removed from thefirst sentence, as this is a very negative statement.
3.10 Although European law is developingmore explanation needs to be given in paragraph 20 of comparisons betweenworkers in the same service orestablishment.
3.11 The first bullet point in paragraph 21should explain like work as doing the same or broadly similar job.
3.12 The second bullet point needs to makeit clear that legally the applicants and the comparators job must have beenrated as equivalent under the same job evaluation scheme. If the employer has applied differentschemes to the two jobs, the comparison will not be allowed. A further bullet point should then beinserted to deal with work of equal value.
3.13 Paragraph 26 needs to emphasise thatwork of equal value is likely to be relevant where men and women do differenttypes of work in the same employment or service.
3.14 The second bullet point, under keypoints after paragraph 30, pre-empts a decision by the ECJ in Allonby v Accrington College (2002) onwhether an actual comparator is required and the Equal Treatment Directiveamendment which will not require a comparator in issues of treatment as opposedto pay. The last section of this bulletpoint should read or has a better pay orbenefits package.
3.15 The final sentence of paragraph 31should be replaced with it is then up toher employer to prove that the difference in pay was for a genuine reason whichwas not the difference in sex
3.16 It would be helpful in paragraph 36 ifthe Code could set out examples of material factor defences that have beensuccessful in the past.
3.17 The first sentence of paragraph 38should be amended to reflect the fact that the burden of proof lies on theemployer to disprove significant disparate impact rather than on the employee.
3.18 The second bullet point in paragraph39 should be amended to reflect the necessity in the test of objectivejustification and should be amended to read bonus payments are necessary to reward them.
3.19 The term transparency in paragraph41 should be explained and should reflect the decisions of the ECJ. It should be clear that the principle oftransparency applies to both how an employees own pay is arrived at, as wellas that of their colleagues for comparative purposes.
3.20 Paragraph 42 would appear to suggestthat employers have an option to not answer the Equal Pay Questionnaire. There needs to be a stronger statement thatan Employment Tribunal will usually draw an unfavourable inference if anemployer refuses to complete the Questionnaire. Equally as it stands this paragraph is not in the spirit ofpromoting fair pay practices.
3.21 There is also a wasted opportunity inparagraph 42 to not explain informal and formal requests and that the EqualPay Questionnaire is just one way of requesting information from employers.
3.22 More stress needs to be placed on thefact that there are strict time limits for lodging claims to an EmploymentTribunal and that lodging a grievance with the employer does not extend the timelimits in paragraph 43 and 44.
3.23 We would challenge the statement inparagraph 48. We have been advised bythe TUC that a woman has the right to know the content of the calculation inaddition to how the calculations are made.We also see little point to the Questionnaire if the employer can arguethat it is confidential information and they are not obliged to disclose theinformation.
4 Section Two Good equal pay practice
4.1 On line 7, of paragraph 52 plusinterest should be added after back pay
4.2 Paragraph 54 needs to be completelyreworded. A stronger positive emphasisshould be placed on the benefits of employers carrying out equal pay audits andthe possible repercussions if they do not.A statement should also be placed in this paragraph that equal payaudits should be carried out in conjunction with their trade unions.
4.3 The third bullet point in paragraph 55should be amended to eliminating the pay gap.
4.4 Again, trade unions are omitted inparagraph 56. In line 6 after by theemployees an addition should be made of and their unions. It should be made specific that employersshould seek involvement of the trade union.
4.5 Voluntary should be removed from theheading and sub-heading of paragraph 57.
4.6 In the second substantive bullet pointin paragraph 58 beginning what information will be needed? the firstsub-bullet should read all the various elements of pay including pensions and other benefits.
4.7 In the second sub-bullet and so-onshould be removed and time in grade, time in role and performance related payshould be added.
4.8 In the third substantive bullet pointthe importance of analysing the pay and benefits of part-time workers and womenreturning from maternity leave should be highlighted. The last sentence could be more clearly stated as It can also behelpful to have someone with an understanding of equality issues, particularly job segregation and the effectsof indirect discrimination in pay systems.
4.9 The fourth substantive bullet pointshould recommend that trade unions should be involved from the outset of thescoping of the equal pay review.
4.10 We would recommend that any differenceor patterns of difference should be regarded as in need of exploring and notrefer to set percentages as in paragraph 64.
4.11 Paragraph 66 should have includedexamples of pay systems as included in the existing Code, pg. 11-18.
5 Section Three A model equal pay policy
5.1 The first paragraph should beredrafted to emphasise the benefits of an equal pay policy. The paragraph should be reworded as follows:
It is good equal pay practice to provide employees witha clear statement
of the organisations intentions in respect of equalpay. Evidence of an
equal pay policy may assist an employers defenceagainst an equal pay
claim
5.2 Section 71 should not only includereference to the identification of sex discrimination in the pay process, butalso the elimination of the same.
5.3 The third bullet point under the modelequal pay policy should include adoption and parental leave.
5.4 The fourth bullet point should makereference to implementing actions in partnership with the workforce and theirtrade unions
5.5 The final bullet point should statethat pay statistics should be monitored annually in conjunction with tradeunions.
5.6 The policy should also refer to theimportance of recruitment and promotion policy and practice in relation toequal pay policy. Equally, developmentopportunities for women workers, particularly those who work part-time, shouldform an integral element of an equal pay policy.
6 Other legislation that may impact on pay
6.1 Other legislation that may impact onpay includes the Fixed Term Contract and Part-Time Workers Regulations.
7 Resource List
7.1 The following should be added to theResource List, Annex B:
Useful addresses
Trade Union Congress, Congress House
GreatRussell Street
London,WC1B 3LS
We wouldwelcome the opportunity to discuss the issues further at any level. Our contact details are as follows:-
Karen Cole Tel: 0117 9293724
ResearchOfficer E:karen.cole@unifi.org.uk
UNIFI
South andWest Regional Office
6thFloor
Tower House
Bristol BS1 3BN