Building Beyond Boundaries: Foundations for Gender Equality

Welcome to the first article in the Building Beyond Boundaries series. In this series of articles our employment law team will be looking at the legal and sectoral issues faced by the Construction Sector. We will be providing legal insight and practical tips to help build a solid (and bigger!) foundation for equality in the sector. Building Beyond Boundaries: Foundations for Gender Equality We’re starting with perhaps one of the most obvious issues in the sector, – the gender pay gap and equal pay. It’s no secret that the construction industry suffers from a high gender pay gap when compared to other sectors. However, there is more to consider when looking at pay according to gender, including legal obligations placed upon employers in respect of equal pay. It is easy to think that the gender pay gap and equal pay gap equate to the same thing, but they are two very distinct entities and both deserve an employer’s careful attention. Mind the Construction Gender Pay Gap All companies with over 250 employees are under a mandatory requirement to report on their gender pay gap which is data that shows the comparison of median hourly earnings of male and female employees in a company. According to the latest data, released in April 2024, the pay gap has been slowly declining but still stands at an average of 9.1% in the UK as a whole. However, in the construction sector it stands at a staggering 22.8%. While there has been a push in the UK construction sector to encourage women to join the workforce, it still remains a traditionally male dominated field, with women comprising only around 15% of the workforce. Added to this is the fact that there is a disproportionate concentration, currently standing at around 81%, of women working in construction in administrative and support roles. Data gathered from 13 of the UK’s top contractors revealed that women made up only 1 in 9 of the top positions in 2023, being 11% of the highest-paid positions, though it should be noted that this was a slight improvement of 9.3% from the preceding year. The gender pay gap in construction also continues to be impacted by the fact that women continue to tend to be the ones in a family group who take on caring responsibilities or move to part-time work to accommodate any familial or caring obligations. The demanding nature of construction work inevitably leads to long hours and irregular schedules, making it difficult for women who are acting as primary caregivers to manage their work and home lives effectively. Equal Pay is Essential While the pay gap and equal pay are often conflated by the UK media, they are two distinct principles. In fact, a company could report a substantial gender pay gap and have no issues with equal pay. Likewise, a company could have no gender pay gap (or a negative gender pay gap, which is one that favours women) and still be falling foul of their equal pay obligations! Equal pay is a fundamental right which has been enshrined in UK law through the Equal Pay Act 1970 and the Equality Act 2010. In its simplest form, equal pay is the legal right to be paid the same as an employee of the opposite sex for performing equal work. Equal work counts as either:

1. Like work – where an employee and their comparator are performing the same or broadly similar work; or
2. Work rated as equivalent – where one person’s work is rated as equivalent to another’s if their employer’s job evaluation scheme rates their work as equal value in terms of the demands made on workers; or
3. Work of equal value – where jobs done by the employee and their comparator are different but can be regarded as being of equal worth when examining the nature of the work, the training or skills required to do the job, the conditions of the work and the decision-making that is part of their role.

Unlike if a company has a gender pay gap, for which there is no legal recourse, employers can be held legally accountable for failing to pay employees equally. What’s more, not only does this apply to pay, but also to contractual terms and conditions. If an employee has been able to show that they are doing equal work as their comparator, but not receiving the same pay or contractual terms and conditions, there is a way for an employer to defend against such a claim. If the employer can prove that the difference is down to material factor which does not directly or indirectly discriminate against the employee in question because of their sex.  This is known as the material factor defence. Examples of a material factor can be different experience or skills, geographical differences or market forces. An employer may even be able to justify a factor that is indirectly discriminatory if it is a proportionate means of achieving a legitimate aim. For a legitimate aim to be found, the employer must show that the material factor they are relying on in their defence corresponds to a real need on the part of the employer, is an appropriate means of achieving the objective pursued and is necessary to that end. Workplace Strategies for Gender Equity As Employment Solicitors we know there are a number of steps an employer can take to mitigate the risk of equal pay issues in their workforce and to help reduce the gender pay gap.

1. Review your contracts – since equal pay also applies to contractual terms, employers need to be certain that they have applied consistency when considering people’s pay and contractual terms. Common terms which catch employers out are usually bonuses, annual leave, commission and even rights to minimum hours. Reviewing your employment contracts and amending as necessary is one of the quickest and simplest ways to ensure you are aligning with equal pay requirements.
2. Consider an equal pay audit or spot check – this can help identify issues, by using your gender pay gap data, to assess whether there are any potential risk factors for an equal pay claim.
3. Review your policies – consider implementing policies such as: an equal pay to create a clear framework for how salaries are calculated. This could involve having published salary bands for each level of roles.  Other policies you might want to consider are: family friendly policies (such as universal maternity/ paternity/ adoption leave) and flexible working.
4. Review job titles and job descriptions for consistency of terms – this may seem obvious, but it’s seen all too often where jobs are given different titles (and different pay scales) without actually considering whether someone else in the business with the same title is doing equal work. Likewise job descriptions or titles that don’t actually reflect what is happening on the ground, can be a common risk space for equal pay claims.
5. Review the distribution of gender across your workforce – if women are more concentrated in clerical roles, then implementing a strategy to help more women into the higher paying roles could be beneficial.

The gender pay gap cannot be reduced overnight (no matter how hard we try!) and issues with equal pay can never be fully removed, however by implementing these strategies, you could go a long way in helping women break through that concrete ceiling. How we can help If you would like to discuss any of the points raised within this article or require assistance to help make your workplace more equitable, then please contact us to speak to a member of our Employment Law Team.