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As a Frenchman once said: "plus ça change, plus c'est la même chose"

A former trainee of Cameron Macaulay solicitors and present partner is SBS solicitors Campbell Read criticises the vanity and vacuity of Law Awards in this excellent article in this months Law Society Journal.

"In a time of universal deceit telling the truth is a revolutionary act."

The Equal Pay Myth

 

“The worst form of inequality is to try and make unequal things equal”

Aristotle (misattributed)

Equality is a strange concept in a world where human beings are so varied and unique. Whilst nature itself defines the most obvious of differences such as gender, age and to an extent appearance, other classifications are nothing more than invented man-made concepts that over time are made redundant by society. In the 21st Century this includes race, creed etc.

The prevailing legal and mainstream societal position is that work, which is found to be of equivalent value, must be remunerated equally. As is often the case with such topics the exact wording allows for ambiguity. At first glance this rule appears to convey a sense of fairness and clearly demonstrates an attempt by legislators to counter discrimination, but are there flaws in the concept? Can two people regardless of age and gender actually perform work to an equal value or must we interpret this an ‘ideal' simply created as a means to quantify the productive capacity of an employee?

Choice, Freedom and State Intervention

If at the age of 40 a woman leaves her job to pursue opportunities outside work such as travelling, the decision is considered one of exercising personal choice and the welfare state should not be reasonably expected to remunerate anybody who makes this decision. However, the same woman choosing to leave work temporarily to start a family is erroneously considered to have made a societal decision and in this case the state legislates to mitigate the impact this decision has on the woman’s career. Equality would suggest that the male partner should receive equal time and financial support but alas this isn’t the case. The argument that sustaining the birth rate is key to positive economic development is moot as in this case, one could not realistically argue that the decision between two people to have a child begins with a conversation about what is best for the greater good. It’s a personal decision based on personal wishes.

A feature of a modern, free-market led, democratic society is personal freedom. We make choices and as a result of doing so we either prosper or fail. In the face of this, from criminal responsibility through to irresponsible procreation modern society is systematically removing the obligation for any individual to account for their decisions and actions particularly it seems where other people are at a loss as a result. It’s exactly this thinking that has led to the myth we commonly refer to as the gender pay gap.

One statistic that gets very little media attention is that for the UK workforce aged under the age of 45, when qualification, skills, experience, employment-type and hours worked are taken into account, the gender pay gap is non-existent. In fact, young women today earn more than young men for part-time work. Younger women are paid more than their male colleagues and find themselves promoted more aggressively.

With regards to part-time work, women in fact earn more. The current societal obsession with the gender pay gap bears does not reflect reality. From these facts, one could argue that the gender pay gap is a consequence of voluntary lifestyle decisions, not employer discrimination.

Fit for Purpose – Gender Advantages

To bring a point of inequality to life, we can use the case of two outbound sales representatives; one male, one female, working for a company selling makeup and beauty products to the female market. In outbound sales, performance relies on a range of factors from tone of voice and ability to build a rapport with the prospective buyer to name but a few. Both employees are employed as 'sales representatives' and both may perform their roles diligently to the letter of what is required of them, but the rep that makes more sales in one day will be of a higher value to the company. It could be found that owing to the nature of the target audience, female sales reps have a higher sales rate and in this case, recruiting solely female sales agents may be a smart decision by the company. However, placing such a job advert will fall foul of discrimination laws.

In this specific example of a sales environment, commission structures would allow for the more successful representatives to receive a higher remuneration which would lead to female employees earning more. Is this an example of an injustice through inequality, or just the regular functioning of market forces? When the involvement of an employee is more abstract and removed from basic performance indicators and perhaps even features a combination of gender, race and age factors, the issues can become rather convoluted.

There are few people in the UK that would disagree that it’s unfair for an employee of one gender to earn more than the other purely because of their gender. But the above example is one of many where this very situation is possible. It’s only the performance-linked pay structure that provides a veil of merit-based earnings.

Positive Discrimination & The Relegation of Merit

In an effort to increase the representation of groups that are naturally underrepresented in certain roles, locations or levels of management; public sector organisations throughout the UK can decide to fill employment vacancies with candidates of a certain gender, ethnic background, age etc based solely on the fact that the candidate fits into the underrepresented group. This process places merit as the means for getting the right people into the right jobs in second place to the long-term detriment of all.

Just a quick Google search uncovers practical applications of positive discrimination that have created unforeseen imbalances elsewhere, Norway’s “Golden Skirts” phenomenon being one of them.

But at first glance this sounds like a positive step towards equality in the workplace. However, when two people perform the same role, and one such person was not employed on merit, it seems even more unlikely that both will be producing work of equal value.  On paper there are supposedly valid arguments for implementing such ideas, but in practice we can see the results are poor and natural by-products of such misguided efforts may be deferred to many years down the line thus blurring the cause and effect that could provide a rational basis for dismissing the idea.

The Media

In the UK, the media never goes too long without reporting on a new workplace study highlighting significant gender imbalances in senior management. This media-driven fizzle of social awareness routinely spawns a fresh push towards having a 50/50 male to female split in boardrooms and directorships. Until legislation is amended and enacted, the nation unwittingly takes the position that a 32-year-old woman choosing to take time off work to start a family is a societal and not personal decision. Taking a position based on rational thinking and a critical analysis of what equality means can lead us to an alternative understanding of equality, that is one where the female side of our species are at liberty to ignore the trend and rebel against the ‘Sisterhood’ that their gender subscribed them to.

In Summary

There’s no argument for unwarranted discrimination in the workplace, but as demonstrated above, businesses can sometimes be operating with inefficiencies borne from legislative efforts to ensure that a sense of equality exists. 

Work and outward success is certainly not everything in life. For example, it is not in any rational mind in any sense a greater accomplishment than motherhood. The argument lies elsewhere.

I expect spending the latter half of my career as an employment lawyer representing Claimants stereotyped as “male, pale and stale”. Society is not advanced or the sum of human happiness enhanced by substituting one set of perpetrators and victims for another

Malcolm Cameron, A Court Lawyer
7th October 2015

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