Writing on The Conversation, University of Sydney Associate Lecturer Alice Orchiston has written an article discussing the limitations of the current avenues open to women to redress the gender pay gap and suggesting two measures that could assist.

Limits of the current system: Ms Orchiston writes that the current legal avenues for pursuing equal pay are limited in that there are significant 'cost and evidence barriers' to seeking redress.  These include:

• The burden of proof is on the claimant: Claimants are required to provide that they are paid less than comparable male staff but proving this is not straightforward, eg employers do not make pay records publicly available for comparison.

• Litigation entails risk for the claimant: Though pay records and other evidence may be obtained during the course of litigation, Ms Orchiston writes, bringing litigation entails risk for the claimant eg litigation is likely to lead to a breakdown in her relationship with her employer and make it potentially impact her future job prospects.

• The cost of litigation is a barrier: Legal action tends to limited to high income earners due to the cost.  Legal Aid, low cost or pro bono representation is generally unavailable.  In addition, the claimant could also be liable to pay the employer's legal costs if unsuccessful. 

Suggested measures to address the limitations of the current system

In suggesting measures to address the issue Ms Orchiston argues that 'Anti-discrimination laws alone cannot close the gender pay gap….because they only provide individual remedies', rather systemic change could better be achieved through:

• Granting independent enforcement powers to the Human Rights Commission and sufficient resources to 'proactively audit and prosecute employers who breach anti-discrimination law. This could help to foster systemic change, and overcome the difficulties that individual women face in bringing complaints'.

• Requiring employers to publish pay data or make it accessible to employees across the same organisation 'would create greater transparency and a basis for women to assess their pay which in turn could facilitate negotiation or legal action'. 

[Source: The Conversation 11/01/2018]

Pay Disclosure in the UK: Some UK companies are now required to publish information relating to their gender pay gap.  The UK Equal and Human Rights Commission recently released a draft policy on enforcing the gender pay gap for consultation.  This is discussed in a separate post in the 22 January Issue of Governance News available through the Governance News members' centre.]