First of all, apologies for the clickbait title – couldn’t resist it.

Also to anyone thinking “Surely the Equal Pay Act was repealed by the Equality Act and replaced by provisions dealing with ‘Equality of Terms’?” you are of course quite right. Well done. But ‘Equality of Terms’ hasn’t really caught on as a phrase has it?

My point is that the separate provisions dealing with equal pay, besides being deeply obscure and complicated are simply not needed. Why don’t we just scrap them and let the normal law of discrimination take the strain?

If you believe that you are being paid less than a colleague because you are black, or gay, or a Christian, or under 40 or disabled then you can claim direct discrimination and the issue the Tribunal will have to decide is whether you are right or not. If you feel that the pay system operates to the disadvantage of people who share your protected characteristic (other than sex) then you can claim indirect discrimination.

However, if you want to claim sex discrimination in relation to pay then you have to bring an Equal Pay claim. Why?  The only real explanation is historical. The Equal Pay Act was passed in 1970 by a Labour Government. The Conservative Government of 1970 -1974 didn’t choose to bring it into force so it was reenacted in 1975 as a Schedule to the Sex Discrimination Act once Labour was back in power. Initially the key difference was that to win a sex discrimination claim you had to show why you were treated less favourably, whereas to win an equal pay claim you only had to show that you were paid less than a man doing the same job or a job that had been rated as equivalent (equal value claims came along later). The burden then switched to the employer to prove that the difference in pay was genuinely due to a ‘material factor’ which is not the difference in sex.

But 40 years later the difference between the two kinds of claim is less easy to justify. If you succeed in showing that you are employed on equal work with a man in the same employment as you (a surprisingly difficult concept), the employer then just needs to show a factual explanation for the difference in pay. Equal pay does not mean fair pay and the employer does not have to justify the difference, just explain it. In reality an equal pay claim can only succeed if it can be shown that the pay is either directly or indirectly discriminatory on the grounds of sex and that is the key issue on which most claims are decided.

But in that case, why go through all the palaver of an equal pay claim? Why not just skip to the good bit at the end and decide whether the pay system is discriminatory? Think of the effort that would be saved arguing about who is or is not a valid comparator or whether the  comparator was ‘in the same employment’ as the claimant.

Is there a downside? I struggle to think of one. Are there really cases where a claimant would succeed in an equal pay claim, but fail in a claim for direct or indirect sex discrimination? I doubt it. Besides even if there were then a claimant could still rely on the directly effective provisions of the EU Treaty (Article 157) which should sort out any wrinkles.

One argument would be that the gender pay gap should be seen in structural terms, not just as a series of individual acts of discrimination. It’s a fair point, but of course the Equal Pay Act didn’t address the underlying structural problems  either. It wasn’t about eliminating the gender pay gap, it was about outlawing a particular form of discrimination based on sex. In recent years we have seen claims involving thousands of women (and men) at a time, but in reality each one was claiming as an individual victim of direct or indirect sex discrimination.

In a recent article in the New Statesman, Emily Thornberry argues that we need a new Equal Pay Act which deals with the structural nature of equal pay problems, with much more emphasis on equal pay audits and a duty on employers to eliminate gender inequality. The article makes some interesting points – although her suggestion that back pay could be limited for employers who are taking steps to tackle an equal pay problem probably wouldn’t comply with EU law. Those details aside, however, there is an important and interesting debate to be had about the causes of the gender pay gap and what can be done to eliminate it.

If a new law is brought in we need to make sure that it does not just deal in crude averages. There is no point for example in just asking employers to publish the average pay of men and women in their organisation (I’m looking at you Liberal Democrats). You can raise the average pay of women in a local authority, for example, by outsourcing school catering services. Removing a large number of low paid, largely female workers from your payroll can reduce your gender pay gap but you aren’t really striking a blow for equality.

Whatever we do about the governance of pay systems, however, I see no reason why individual cases of discriminatory pay need to be dealt with differently when the discrimination is based on sex rather than race or one of the other protected characteristics. Let’s do something that genuinely simplifies employment law and scrap the Equal Pay Act. Then we can go on to think about what can be done to achieve equal pay.