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Equal... but different

PUBLISHED: 11:14 18 January 2013 | UPDATED: 22:38 20 February 2013

Equal... but different

Equal... but different

Darren Sherborne wades perilously into the equality debate.

Equal... but different

Darren Sherborne wades perilously into the equality debate

Since becoming an employment lawyer, and particularly since writing columns on the state of employment law, it is true to say that I have, on occasion, upset one or two with criticism of the system we currently have. Rarely can it be said that I have upset as many as I may upset with this particular subject. I anticipate that 50 per cent of you may not like it.

At the close of the year in 2012, the European Commission has proposed a new directive which will have the effect of forcing companies to increase the number of women on their boards to at least 40 per cent. The proposal at this stage is for publically quoted companies only. Call me cynical if you like, but the expression the thin end of the wedge springs to mind. In addition to this, the gender cold war heats up further as courts extend the time that women can claim equal pay from 6 months after employment ends to six years.

Many years ago, as a university student, I lived in a shared house as so many do. I was told by my landlord that he always mixed boys and girls because if he allowed one sex to live exclusively in his house, he expected the place to be wrecked. Conversely he reasoned that by mixing the gender in the house, the excesses of either sex would be curbed. Whether you agree or not, you can follow the logic. Men and women are equal, but different.

In the workplace its never been that simple, or perhaps it was once too simple. Men went to work and women knew their place. Women who did go to work and became pregnant were politely wished good luck and sent home to care for the expected youngling. Clearly we have come a long way since then. With bras well and truly burnt, women have marched into the workplace demanding equal rights and men, albeit reluctantly on occasion, have handed over the keys to the filing cabinet, stationery cupboard and even the fire engine, and accepted that women are here to stay. It seems that equality of opportunity between the sexes has become almost universally accepted.

What interests me, is that if you ask most people, regardless of sex, class or employment position, they will agree with the principle of equality of opportunity. The idea that we should start the race from the same position seems to appeal to the English sense of fair play. Even rampant misogynists must accept that they have nothing to fear from the starting line being the same for all, because if they admitted to having an issue with it, they could not answer the question why?

Present people with the question as to whether we should force people to finish the race at the same time and you will get an almost universal refusal of the idea. It seems to me to be the will of the people that men and women should have the same opportunity in the jobs market, but no one accepts the idea that society should engineer the outcome of competition in the workplace so that men and women achieve the same, regardless of ability.

This makes the directive which will try to impose quotas of women on boardrooms clearly out of tune with public opinion. Furthermore, while I clearly cannot speak for women, what self-respecting woman wants to get to the top of a company because of her gender and some quota, rather than because of her ability. It seems that by suggesting a quota, there is a presumption that women cannot do it for themselves.

In December 2012, the Office of National Statistic released figures showing that in the younger age group below 26 years of age, women are now paid on average 10 per cent more than men. It seems obvious that as a society we are correcting the gender gap in the workplace naturally, by giving equal rights at a basic level. When this works through the system, it seems inevitable that women will occupy more senior positions in the workplace, by virtue of having worked their way up. Women and men are different, but level the playing field and they are clearly equal, and given a dignified opportunity they show it.

On a more immediate note, employers should be aware that equal pay claims can now be brought up to six years after someone has finished working for you. For the uninitiated, equal pay claims are where a woman can bring a case because she is not paid the same as a man for the same job or, for work that is of equal value. The latter hit the headlines last year when care workers for Birmingham City Council won a case to be paid the same as bin men. Such claims are becoming more common and can stretch back for years. Therefore they are expensive. If faced with a case, an employer will need records as to what an employee did, what they were paid and what the value of that work was. Records will now need to be kept for six years after the employee has left.

Darren Sherborne is founding partner of Niche employment law firm Sherbornes LLP.

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