Last week Massachusetts become the first US state to take steps
to ban employers from asking applicants about their current salary
during the interview process. This legislation is being introduced
to tackle the gender pay gap within the state. At present, women in
Massachusetts are paid 82 cents for every dollar earned by their
male counterparts. Given that women traditionally earn less than
men, women are arguably likely to start off on lower salaries.
Companies therefore seek to benefit from this imbalance by asking
about current salary levels – let's face it, what company
would pay more than they need to in order to get their chosen
The law, which is due to take effect on 1 July 2018, also
provides that companies can no longer ban employees from discussing
their salaries. Whilst it is unlikely that HR will tell women in
Massachusetts how much 'John from accounts' is earning in
comparison to themselves given confidentiality and data protection
issues, it is hoped that permitting frank discussions between
employees will lead to women feeling more empowered to push for pay
So what is the position in the UK?
Well, gender pay equality is still a real issue. Despite the
introduction of the Equal Pay Act 46 years ago, women on average
earn just over 19% less than men. To put this in stark terms, the
Fawcett Society (a charity which campaigns for gender equality and
women's rights) estimates that this year, women will
effectively stop earning relative to men on 10 November 2016.
The UK does have a raft of equality laws, but nothing so far to
prevent employers from asking candidates about current
However, whilst companies can request that employees keep their
salaries confidential, section 77 of the Equality Act 2010 makes
pay secrecy clauses in contracts of employment unenforceable to the
extent that it prevents an employee from finding out whether or to
what extent there is a connection between pay and a particular
protected characteristic, e.g. to find out if pay is connected to
his/her gender, age, race, sexual orientation or disability.
Section 77 also makes it unlawful to victimise an employee for
making or seeking disclosures about this connection between pay and
gender or other protected characteristic.
So, if a woman asks her male colleagues about how much they are
paid because she is concerned that she is being paid less for
carrying out the same or similar work, it would be unlawful for the
employer to sanction her in any way for asking the question.
In addition, the government has recently published the draft
Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 to
attempt to redress the gender pay gap issue. This will require
companies with over 250 employees to publish information about pay
and bonuses on a yearly basis, with the first reports due in April
The upcoming gender pay reporting duties oblige companies to
overall gender pay gaps, showing the
mean and median pay for both sexes;
the number of men and women in each
of the 4 pay bands (lowest to highest salaries) to show how pay
differs at different levels of seniority; and
information on pay gaps relating to
bonuses and the proportion of males/females who received a
However, before we can all start rejoicing, the draft
Regulations do not contain any enforcement provisions or sanctions.
It seems, therefore, that the government is relying upon negative
publicity to drive companies with a large gender pay gap to reduce
this. Whilst it might be preferable to give women enforceable
rights, the publicity approach may not be as toothless as it seems.
In a government consultation on this, 84% of women aged between 16
and 30 said they would consider a company's gender pay gap when
applying for a job and 80% would compare data across companies when
It is hoped that these measures, not only in the UK but also
across the pond, will redress this seemingly worldwide issue at a
faster rate. This may not be difficult in practice given that
Frances O'Grady, General Secretary of the TUC, has estimated
that in the UK it will take another 47 years to reduce the gap at
the current rate of progress.
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