We have designed case study scenarios to illustrate what decertification could look like as a future law. The case studies draw on legislative principles which were workshopped during the project (see final report, section 9). The legislative principles are not designed as a definitive statement but, instead, encourage discussion on what a decertification law should look like – and whether it would be a good idea. The following case study works through an issue relating to equal pay. What would the legal situation be?
Relevant principles from prototype:
- Legal registration of sex and gender is terminated
- The term “gender” provides an anti-subordination legal term
- Introduction of a new ground of gender in equality law
- Self-identification of gender
- Data collection using gender-based categories where appropriate
- Levelling up
- Recognising multiple genders
A case study on equal pay
Sharon, Billy and Alex work at Bargainz supermarket as checkout assistants. Sharon identifies as a ciswoman, Billy as agender and Alex as nonbinary. They create a Queer/Trans/Nonbinary Retail Worker Support Group with their close work colleagues Nelson (transman) and Maya (declines identification) who work in the supermarket’s warehouse. One day, Nelson and Maya notice with delight that they have been given a bonus of £500 for “anti-social working hours over the winter break”. They share the good news with Sharon, Billy and Alex, who congratulate them, but then begin a conversation about pay.
When they each disclose their hourly rate, they notice that the checkout assistants are being paid 30% less per hour than the warehouse workers, with no access to a seasonal bonus. They try to work out the reason for this. The warehouse workers are predominantly, they think, cismen. The work involves physical exertion, driving forklift trucks, loading and un-loading, some logistics work, unsocial hours, and an environment that can often be cold. The checkout assistants are, they think, predominantly ciswomen. Their work involves exhausting social interaction, having the warmth of their welcome monitored by external consultants working for the company, repetitive movements, unsocial hours, and standing or sitting in a confined space by the till for hours on end. They are also required to ensure the checkout is kept clean and share vacuuming at the end of a shift.
Sharon, Billy and Alex approach their union Supermarket Workers United (SWU) for advice. Their local representative, Kaz, tells them that they can consider bringing an equal pay claim on the basis that the overall rate of pay for checkout assistants and warehouse workers is very different, but the work is of equal value. This, Kaz explains, is likely to be evidence of gender discrimination causing unequal pay. Alex asks whether it matters that they do not identify as a woman, and nor does Billy. Kaz says no. She explains that:
- Since decertification, equal pay law has been changed so that what matters is whether a person or group of one gender is being paid less than another, not whether those groups are male and female necessarily. In this case, however, the groups consist of workers who identify respectively as mainly male and mainly female.
- Another important factor in the new law is attention to how the employer ‘genders’ workers. Even though Billy and Alex do not identify as women, they are doing work that ‘genders’ them as female in the workplace due to the employer’s processes and perceptions. For this reason, they can bring a claim of unequal pay gendered as female (but without self-identifying as such) in comparison with the warehouse workers, who have been gendered (and rewarded) as male.
- Even before the change, equal pay law allowed men in feminised jobs to make claims of unequal pay as against those in masculinised jobs through the principle of “piggyback claims”. This is still the case, and it provides more support for Billy and Alex to be included in any claim despite not identifying as female.
- The fact that Sharon, Billy and Alex’s potential comparators include a transman and someone who prefers not to identify their gender does not undermine the likelihood that the warehouse workers, as a whole, have benefited from being in a masculinised role.
Billy asks how Kaz can be so sure that these groups – male and female – still make sense, given that people can now self-identify at work. How will the union show that the people in the checkout assistant group are mainly female and the warehouse workers mainly male if Kaz can’t simply rely on people’s self-presentation, clothing, or behaviour? Kaz replies that since gender was decertified, Bargainz has been asking all workers to self-identify their gender with these options: “female, male, transgender, nonbinary, agender, bigender, genderfluid, gender nonconforming, prefer not to disclose, other (please specify).” In line with government guidance on gender pay gap reporting, Bargainz gives all workers the opportunity to update their gender annually, which most workers never do. Whilst there is a growing number of colleagues who identify outside of male and female, the majority of workers do identify as male or female. The process for starting an equal pay claim allows Kaz to find out the breakdown of workers in each job.