Strand Four conducted a case study on equal pay. Equal pay law is broadly criticised for its limited legal remedies, narrow coverage, and impoverished conceptual approach to widespread material inequalities faced by women.
Assuming that one key effect of decertification would be self-identification of sex/gender, how would equal pay law continue to operate?
Employers are moving forward with self-identifying sex/gender
We found that many employers are moving forward with self-identification in areas where it could have significant legal effects. It’s very difficult to predict with certainty what impact decertification would have as there are multiple principles and practices of identifying sex/gender whilst addressing equal pay and gender pay gap reporting. Self-ID may not pose a fundamental challenge to the current architecture of equal pay law due to the definition of sex/gender in the Equality Act and the way that equal pay claims work. Self-ID has already been foreseen by GEO/ACAS guidelines in relation to gender pay gap reporting in an area where employers tend to merge their understanding of their obligations relating to ensuring equal pay (on the one hand) and undertaking reporting (on the other).
Best practice is creating on-the-ground change
The inclusionary best practice approaches of employers are creating on-the-ground momentum towards self-ID which is likely over time to require equal pay law to change in any case. This is further supported by moves towards race and disability pay gap reporting, which are based on a self-ID model. Any future change in this area of law would need careful thought about how to create an inclusionary framework for people who identify across the gender spectrum.