Law

Mind the Gap-Is Mandatory Gender Pay Reporting the right step forward in equality?

mind the gap 1

There continues to be a gap between what a man and what a woman earns in the workplace. It now stands at 19.1% for full and part time workers in the UK, this means that a woman earns 80p for every £1 a man earns. It is now forty years since equality laws were passed in the UK. By early 2016 there will be new regulations that’ll force companies with more than 250 employees to publish gender pay gap information. This will be a great change from the voluntary approach that companies were previously encouraged to publishing.

The coalition government introduced gender pay reporting under a voluntary scheme, in the Think, Act, Report Scheme. It was reported in August 2014 that only five companies (Tesco, PWC, FriendsLife, AstraZeneca and Genesis) had published their gender pay gap information by their own accord. More than 275 companies had signed up to the scheme but did not publish their gender pay gap information. Labour came up with an amendment to the bill to introduce mandatory gender pay. It gained support from the equality commission and was backed by different MPs from across the parties. This then resulted in the Liberal Democrats to prompt the government to introduce section 147 of the Small Business, Enterprise and Employment Act 2015 (SBBEA).

The Law 

Section 147 of the SBBEA requires the government to carry out its powers under section 78 of the Equality Act 2010 to make regulations for employers with 250 or more employees to publish information on gender pay gap within 12 months of the Act coming into the force. The Act received Royal Assent on 26th March 2015 meaning that the regulations must be made by 25 March 2016. Section 147 of the SSBEA and section 78 of the Equality Act has not been brought into force. The government has said that they are planning to for a consultation to be published in the summer of this year and regulations to be done by early 2016. This was confirmed by Nicky Morgan, the Minister for Women and Equalities.

Right Step forward

The move to make gender pay reporting mandatory has long been resisted by parts of the Conservative party and several businesses. The difference in the gender pay gap is the sixth highest behind Italy and Portugal. In the private sector, the gender pay gap for full time employees is 17.5% and when looking at it by occupation the figures for 2014 show that pay gap for those in full time management roles is around 16% and 25% for those working in skilled trades. Women are still working in badly paid roles compared to men who dominate skilled and professional roles. The Fawcett society has said that the latest figures suggest that the gap still relates to the stereotypes around men’s and women’s roles and their values in the workplace. According to its studies, figures show that women make up 78% of those working in social and health care whilst men account for 88% of the better paid industries of science, technology and engineering (STEM).

The architecture profession for instance women accounted for 41% of the profession in 2014 at the junior rank of a Part 1 qualified architectural assistant and as the roles become more senior the percentage falls ( they made up 35% of qualified architects, 26% of senior architects and 13% of equity partners or shareholder directors). The situation gets even worse in the engineering profession where in a 2.3 million strong industry, only 6.7% of it is women. According to the Institution of Mechanical Engineers, women make up 15% of the country’s graduates yet only 1% are chartered medical engineers. Employers should be encouraged to address restrictions on flexible working and costs of childcare, so that the pay gap between men and women becomes more equal.

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The mandatory gender pay reporting is the right step forward and should be welcomed. It will improve the big gap between men and women’s pay. It will also promote transparency by forcing companies to identify gender pay issues in their organisations. David Cameron said mandatory gender pay gap reporting is “ a really big move” and will “cast sunlight on the dispreprenancies and create the pressure we need for change, driving women’s wages up”. Labour has also welcomed the move but added that the Conservatives were slow to act on gender pay transparency.

The legislation will not require for instance long and detailed equal pay audits which trade unions have been campaigning for a long time. To understand what is going on in the workplace, we need more than one single figure or even just figures. There are other factors that may contribute to gap in pay such as the impact of motherhood and family responsibilities on women’s paid work or that companies are failing to provide equal pay and this is the cause behind the gap between men and women’s pay. These factors should also be taken into consideration when an employer is reporting on its gender pay gap. The government has yet to decide whether they will make big companies publish a single figure or a number of figures relating to each pay grade. Nicky Morgan has suggested that the figures could be released in bands meaning that pay will be compared at each grade rather than an overall figure.

In looking on how to improve the gender pay gap in Britain we must also start from the beginning-education. The government especially the Education Secretary and the Minister for Women and Equalities should encourage schools, colleges, sixth forms and universities to address occupational segregation.

The Reaction

Petra Wilson (Chartered Management Institute)  told the Guardian:

We welcome David Cameron’s announcement that new legislation will require every company with 250 employees or more to publish the gap between average female earnings and average male earnings. But businesses should report on more than just average pay rates. Given that the gender pay gap is widest at the top, it’s vital that companies track pay across different job levels. And, of course, the pay gap isn’t the only problem facing women at work, as the lack of women in senior roles is still a huge problem.

Transparency is the most powerful driver we have for achieving change, and this legislation will be good news for business. The new measures will help unblock the talent pipeline. Clearer employee data, improved recruitment and a reinvigorated focus on business culture will pay dividends for all employees. The evidence is clear: diverse teams make better decisions and deliver better results for businesses.

John Allen, chairman of the Federation of Small Businesses

We need to keep up the momentum and break down the remaining barriers that prevent women progressing in the workplace and the boardroom”.

Gloria De Piero, shadow Minister for Women and Equalities

said it was “good news” ministers had “finally embraced pay transparency after shelving the Labour legislation for five years”.

“For pay transparency to make a real difference, we need to have an annual equal pay check which measures progress and recommends what action needs to be taken – a move the government voted against earlier this month”.

Jo Swinson, former Lib Dems Equalities minister

said: “Saying we can afford to wait for another generation to close it is, to put it mildly, unambitious. The UK economy is currently missing out on the talents of too many women. In government, my Lib Dem colleagues and I fought tooth and nail with the Conservatives to get them to agree to even minimal changes to help close the gender pay gap”.

Kate Andrews, The Adam Smith Institute

“Forcing businesses with more than 250 employees to publish their ‘pay gaps’ will only promote more myths and confusion. There is no such thing as an ‘average salary’; education, previous experiences, negotiating tactics, and unique abilities all contribute to one’s salary, none of which can be known by comparing John and Jane’s annual take-home pay on a spreadsheet.

“Furthermore, men and women often choose to make different career decisions – usually based on flexibility and rigour – so they can embrace other, equally meaningful parts of their life; this, naturally, can be reflected in their pay.”

What does it mean for employers and employees?

In whatever method the government decides for companies to publish their gender pay gap information there will be issues in terms of recruitment, reputation and retention. If there is a big gap, this is likely to have an effect on a company’s retention and ability to recruit. It will also highlight the company’s commitment to diversity and to gender equality. In addition, it will bring transparency and scrutiny to the way companies pays its employees.

Mandatory gender pay reporting could mean large costs for big employers and could expose them to sex discrimination and equal pay claims.  By big companies publishing their gender gap information, employees will be able to access the information and if they are feel they are being paid lower than their comparator group it could potentially mean there will be several pay settlements. Large costs for the big companies are likely to arise if the audit is a detailed and sophisticated one, there is a also a fear that it will be time consuming for companies too.

Indeed, the government’s plan to force big companies to publish gender pay gap information is a positive step forward in gender pay and is welcomed. However it does not make equal pay a reality. More will need to be done to encourage employers for their to be equal pay parity between men and women.

Images: www.guardian.com (Joe Giddens/PA), www.bbc.co.uk

Courts Move away from EU Law to Common Law

Courts move away from EU Law Brenda Hale

Supreme Court Vice President Lady Brenda Hale in a keynote address to the Constitutional and Administrative Law Bar Association Conference 2014 questioned whether there has been a move away from EU law to common law due to the rise of anti-EU sentiment.

After many years of the courts considering EU legal principles, Lady Hale has suggested that recent decisions highlights the fact that UK constitutionalism is ‘on the March’.

Lady Hale wished to classify this theme as ‘UK Constitutionalism on the March’ rather than Richard Clayton’s description ‘The Empire Strikes back’.

She described this theme as:

“after more than a decade of concentrating on European instruments as the source of rights, remedies and obligations, there is emerging a renewed emphasis on the common law and distinctively UK constitutional principles as a source of legal inspiration”

This renewed emphasis is documented in the list of cases that Lady Hale discusses in her keynote address to the Constitutional and Administrative Law Bar Conference 2014. Cases such as A (No 2), HM Treasury v Ahmed, Osborn v Parole Board, A v BBC and the HS2 case according to Lady Hale demonstrates the move away from European principles and back to UK constitutional principles. It highlights Lady Hale’s argument that there is a growing awareness that ‘UK constitutional principles should be at the forefront of the court’s analysis’.

Litigants and litigants have been reminded to look ‘first to the common law to protect their fundamental rights’.

Hale questioned whether it was the anti-EU sentiment amongst MPs that has caused this development in Courts, or whether it was judges philosophies influencing the court, or simply that the law was returning to the traditions of UK Constitutionalism.

What are your thoughts? Is this trend a response from anti-EU sentiment amongst parliamentarians, or whether judges opinions are pushing this development, or it is just looking back to common law principles. Or is it even mix of the three, a mix of two or none of these responses.

You decide!

Landmark ‘Right to be forgotten’ ruling against Google

Larry Page Google 

(Larry Page, CEO of Google)

A landmark ruling against Google will give people the ‘right to be forgotten’.

The American company Google has launched a service which is available from Friday. It would allow Europeans to ask Google to censor links that hold personal data. Personal data would be able to be removed from online search results. This follows the landmark EU ruling where the court gave individuals the ‘right to be forgotten’. This means that ‘irrelevant’ links and outdated data should be removed if requested, the court ruled this on the 13th May. The case concerned a Spanish man who complained that an auction notice of his repossessed property which was on Google results, infringed his privacy.

Google has said that people who wish to remove their personal data from online can do so by an online form. People who wish to remove their personal data would need to provide links they want removed, the country they are from and the reasoning behind their request. In addition to this, individuals will have to provide a valid photo identity.

In an interview with Financial Times, Larry Page (see picture above) warned that the court’s ruling could restrict innovation and strengthen repressive governments who restrict online communications.

Mr Page said Google will comply with the ruling and promised to be involved in the privacy debate “I wish we’d been more involved in a real debate . . . in Europe,” he said. “That’s one of the things we’ve taken from this, that we’re starting the process of really going and talking to people”.

Larry Page also said the company will try to ‘be more European’.

Balenciaga files lawsuit against Steve Madden

Balenciaga is suing Steven Madden with a trademark lawsuit. The Paris based design house, helmed by Alexander Wang, filed a lawsuit in the US District Court in Manhattan accusing accessories designer Steven Madden of copying its famous motorcycle bag. Balenciaga said that Steven Madden has made a “studied copy” of the bag. Balenciaga argues Steven Madden’s Btalia bag which is being sold for $88, resembles the Motorcycle bag.

Balenciaga Motorcycle bag Balenciaga Motorcycle bag

Balenceniaga motorcycle bag Balenciaga City Bag

Steve madden btalia bag Steven Madden’s Btalia bag

The French design house which is owned by parent company Kering has claimed that Steven Madden is manufacturing a cheaper version of their famous Motorcycle bag. This according to Balenciaga has been specifically done to confuse consumers. The company claims that Steven Madden has infringed a trade dress regulation that the Parisian house applied for in 2007. A trade dress regulation is a type of trademark protection. This is a visual kind of trademark where the appearance of the product is looked at.  Trade dress infringement issues arise when a party feels that a copy could result in consumer confusion. The trade dress which was registered by Balenciaga covers the front design of Motorcycle bag and its lookalikes such as Twiggy, Velo, Papier and City (see picture above).

The registration protects: “The flat pouch with a zippered rectangular closure, a zipper pull consisting of a strip centrally-knotted and hanging in two equal lengths, and a semi-elliptical patch outfitted with two raised studs in each corner; and two identical patches in an elongated pentagonal shape, featuring an elongated hexagonal patch outfitted with a buckle and two raised studs”.

The Motorcycle bag has been a celebrity favourite seen on the likes of Kim Kardashian, Mary-Kate Olsen and Paris Hilton. It became so popular that there were many counterfeits on the market. As a result of this, Balenciaga decided to register a US trade dress to protect the design. The bag was created by Nicholas Ghesquiere who was at Balenciaga from 1997 and in 2012 Alexander Wang became his successor.

SPL265916_009  Kim Kardashian carrying a suede Motorcycle bag

Balenciaga has asked the court for an injunction to prevent Steven Madden producing the “studied copy” of its Motorcycle bag. The French label is also seeking monetary damages and lost profits. Balenciaga’s complaint states: “Defendant’s wholesale copying of Balenciaga’s designs is likely to deceive consumers into believing that the infringing [handbag] is associated with or authorized by Balenciaga when it is, in fact, not.” In addition, Balenciaga claims not only is there customer confusion but it is also hurting the company’s goodwill, reputation and sales.

This is not the first time Balenciaga has filed a lawsuit against the American designer, Steve Madden. If you remember, in 2007 the company filed a complaint against Steven Madden for “intentionally copying” its LEGO high heel from its Autumn/Winter 2007 Collection.

Do you think Steve Madden’s Btalia copied Balenciaga’s Motorcycle bag? Or do you think they are just similar?

 

Stay Blessed

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Robin Thicke accused of Infringing Marvin Gaye’s Song

Marvin Gaye and Robin Thicke

We all know Robin Thicke’s number one hit ‘Blurred Lines’. It has been controversial for many reasons. However, recently the song has been hit with fresh criticism. This time it is from Marvin Gaye’s family.

Marvin Gaye’s family responded to a Robin Thicke lawsuit which claimed parts of his hit ‘Blurred Lines’ weren’t stolen from Gaye’s 1977 hit ‘Got to Give up’.  Gaye’s children have launched a number of counter claims against Thicke and record label EMI.

As well as claiming that Thicke copyright infringed ‘Got to Give Up’, his children claim that he has copied many of Marvin Gaye’s songs. His family have argued that EMI ( is owned by Sony/ATV Music Publishing) should lose all the profits on the Platinum rated single ‘Blurred Lines’ and that they should gain rights to administer the song under Marvin Gaye’s catalogue.

Gaye’s children have claimed EMI of breaching contract by failing to protect Marvin Gaye’s musical work and by attempting to turn public opinion against the family.

This case comes after, Gaye’s family threatened a Court battle in August against Thicke. Thicke and the song’s producers Pharrell Williams and T.I asked the judge to declare that ‘Blurred Lines’ did not infringe on Gaye’s musical work.

Robin Thicke has previously praised Marvin Gaye’s song ‘Got to Give up’ in a interview with Billboard. He described it as his favourite song of all time and that he wished to make a song like that with Pharrell in the studio. Gaye’s children are pointing to this interview to support their case.

Was the song copyright infringed or used for mere inspiration?

Camera in Courts For The First Time

 

Cameras in courts are allowed in court for the first time since last week. It has been described by the BBC as ‘…a landmark for justice and journalism’. After many years of campaigning by the BBC, ITN, Sky News and the Press Corporation, live broadcasting is possible in five courtrooms and recordings in 13 others.

Since 1925 it was an offence to take photos of judges, witnesses and jurors in the courts of England and Wales. In Scotland, broadcasters have been allowed to film since 1992 but this requires the consent of all parties. However for the first time in England and Wales a case will be broadcasted. This case concerned a ringleader of a scam to forge pound coins failed in his bid to appeal a seven year sentence.

As for the crown and magistrate courts, cameras are not allowed yet. Additionally, lawyers arguments’ and judges comments’ can be shown but defendants cannot.

It can be argued that this change in the law will allow the public to understand the work of the courts and gain an wider understanding. Several broadcasters have supported the move, many arguing that it would benefit justice and democracy.

John Hardie, ITN chief executive said filming in courts would be ‘for the benefit of open justice and democracy’.

However there has been criticism of allowing cameras in court. Labour Peer Baroness Kennedy QC said ‘What I’m worried is something more fragile, which is our liberty as citizens in this country that the legal system should be taken seriously’. There is fear amongst critics that it would undermine the respect for the court.

Zero hour contracts

There have been discussions concerning zero hour contracts in the media recently. A number of  companies have been employing the majority of their staff on zero our contracts. The use of zero hour contracts are on the rise. According to the Charted Institute of Personnel Development there could be as much as a million ‘zero hour’ workers. Although it has its benefits, it has been criticised as workers can be exploited.

What is a zero hour contract?

A ‘zero hour’ contract is a term used to describe a contract where the employee is not guaranteed work and is paid only for the work they do. This creates an on-call arrangement where an employer will give the employee a few hours notice to come to work. The employer does not have to provide work for the employee and the employee does not have to accept it. Under the National Wage Regulations, workers must be paid the national minimum wage if they are at work and are required to be there.

Benefits

Zero hour contracts would benefit people who want flexibility and want occasional earnings. This could benefit students, who would like to fit work around their studies and it could appeal to parents with children. Another benefit for workers is that this contract could supplement a main income. People in full employment may be able to have a second job because of the flexibility of a zero hour contract. Additionally, it would help businesses meet demand. It allows businesses to respond to the peaks and lows of the economy by bringing in people who could have been out of work. Alexander Ehmann, Head of Regulatory Policy at the Institute of Directors said that: “Banning Zero Hours Contracts would hurt thousands of employees who rely on the flexibility such contracts allow and employers, especially small and medium sized firms, would struggle to hire the staff they need to meet varying demand”. It would also benefit businesses as it would cost less to hire staff on zero-hour contacts than fixed contracts.

Criticisms

Employers do not have to offer sick leave pay or holiday pay. However if court decides that there is consistent employment then it will override the contract terms. There is also a criticism that workers could be exploited as there is no guarantee on the number of hours workers can work.

The Future of Zero hour contracts?

Vince Cable, the business secretary, has said that the government may legislate on zero hour contracts. However he has ruled out a complete ban. Cable has been leading a review since June looking at changing rules for workers. This would include reviewing rules where workers can work only for one employer.

Labour has said there will be a zero hour summit on zero-hour contract abuse. Chuka Umuna MP suggested that zero hour contracts could cause difficulties for families. The shadow business secretary said “Zero-hours contracts are making hundreds of thousands of people worried about whether they will have enough work or be able to put food on the table for their children week by week”.

While change is welcomed, many people however do not wish for them to be banned. Andy Burnham, the shadow health secretary has called for them to banned. This would be unpopular with businesses and workers who need flexibility.

What do you think?

Let me know your thoughts

Stay Blessed

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