THE CULTURAL AND MORAL
ORIGINS OF EQUAL PAY FOR
Summary: In this chapter, I explain why I take the principle that men and women are entitled to earn equal pay for equal work as well settled in law and in morality, how unequal pay is a means of social control and domination, and the important differences between unequal pay and the gender pay gap.
Why Should Men and Women Get Equal Pay for Equal Work?
In Britain, the idea that people should be paid equal pay for equal work is a recent and radical belief. Throughout ancient and modern British history, many workers have not been accorded the dignity of labour, let alone fair pay or equal pay. In fact, many workers were not accorded personhood or humanity. The use of slavery – whether lawfully used by aristocratic landowners in ancient times or unlawfully used by organised crime syndicates in current times – has been a classic method of political control and domination, despite chattel slavery never being expressly authorised in Britain by statute.
In practice, workers on British soil have historically included chattel slaves treated as items of property owned by their master and bought and sold for money. It is widely believed that slavery existed in pre-Roman Britain. Whether or not it was so, indisputable evidence exists of slavery in Britain from the time of the Roman conquest in 43 AD. Indeed, the Roman Empire and economy were built on slave labour, which was considered a normal part of the social order.
Like the Romans, the Norman invaders of Britain in 1066 cemented their power by taking control of land and slaves. For centuries, under the feudal system, most agricultural workers were serfs or villein, with no right to choose their employer, place of work or type of work, who were compelled to labour for the local lord of the manor. Their duties may even have included serving as soldiers in wartime, whenever called up by the lord. At the time, it was widely believed that such a social hierarchy had been ordained by God, and at the summit was the King, who ruled by divine right.
Following the epidemic of bubonic plague known as the Black Death, which reached Britain in 1348-1350, one third of the population died and the country faced a crisis in the labour market. One of the demands of the unsuccessful Peasants’ Revolt in 1381 was an end to serfdom. After the execution of the rebel leaders, the Statute of Cambridge 1388, under which the villein had no freedom of movement away from the place in which they were required to live and work, reinforced restrictions on labourers and shored up the feudal system. It is believed that serfdom gradually declined over the next few centuries, as more and more lords found it advantageous to sell freedom to their serfs in exchange for money.
In more recent centuries, workers in Britain were sold as property in the Trans-Atlantic slave trade, resident in Britain most often as domestic slaves, but most commonly in transit through British ports as agricultural workers to the Caribbean. The experience of West African and Caribbean slaves still forms the contemporary paradigm in the popular imagination and the media of what it means to be enslaved. It is undisputed that the British economy, through slave traders’ spending as a new class of nouveau riche, the sponsorship of public works, and financial gains to middle class investors, profited greatly from the unpaid labours of black chattel slaves. Yet, according to the prevalent social attitudes in those days, the Trans-Atlantic slave trade was an acceptable occupation for many men who became wealthy and influential public figures, and also an acceptable form of investment for others.
Meanwhile, despite serfdom falling into disuse, another class of workers, both indigenous Britons and many workers who were trafficked between British colonies, were described as indentured servants or bonded labourers. For them, legal contracts, debts or financial obligations were relied on to explain their lack of freedom over for whom they worked, what work they did, the conditions of that work, the duration of the work (usually several years), and their failure to earn any pay. At the time, however, indentured servants and bonded labourers were not commonly considered to be in the class subjected to slavery.
The next major jolt to the British system of political power and control came with the Industrial Revolution, which began around 1760 with the move from an economy dominated by agriculture towards an economy based in manufacturing, and from handicraft to mechanised production. Over the next century, the British labour force was transformed from a mainly agricultural and scattered countryside workforce into a largely urbanised population concentrated in rapidly-growing towns and cities and working in factories. Mechanisation would eventually have enormous and significant implications for redundancy of the workers employed on the most physical manual labouring tasks. It can be argued that the Industrial Revolution ended the economic model in which keeping a large workforce of slaves, or having a large number of children, was profitable.
In 1772 in Somersett’s Case1 it was declared that, having never been made lawful by statute, chattel slavery was also contrary to English common law. Only in 1807, however, was the Slave Trade Act passed, banning slave trading in British colonies.
Meanwhile, another class of impoverished British people were forced to labour under what is now regarded as “workhouse slavery”. People who had been unable to find employment, or who were prevented from working by sickness, disability or age, were placed under various social and financial pressures to enter workhouses, where, in exchange for board and lodging, and sometimes access to medical care and schooling, they and their families were compelled to undertake unpaid labour. At the time, workhouses were presented as a socially-responsible way of helping the poor, and were not associated in people’s minds with slavery.
As the Industrial Revolution took hold of the British labour market, bitter arguments raged about the economic and political freedom which the new factory workers were acquiring. The Combination Acts 1799 and 1800, which restricted workers’ ability to assemble and form unions, were repealed in 1824, only for the Combinations of Workmen Act 1825 to be enacted almost immediately. Under the dominant cultural norms operating in that era, workers’ assemblies and trade unions were considered subversive and were banned.
The reference to “Workmen” was no misnomer. Women’s work both inside and outside the home was routinely unpaid and, if paid, it was uncontroversially paid at a lower rate to men doing the same jobs2. When the right to vote was finally extended to 15-20% of adult males by the Representation of the People Act 1832, to those men who could show that they owned the requisite property, many men living in the sprouting industrial cities were enfranchised, however, no women were entitled to vote.
Eventually, in 1834, the Slavery Abolition Act 1833 became law. Its passage brought a massive transfer of wealth from the country into the pockets of slave owners in compensation, with no financial settlement, property rights or offers of paid employment awarded to the labourers who were freed. Yet, this legal change was widely perceived as a liberal and progressive way to end the Trans-Atlantic slave trade.
Until the Married Women’s Property Act 1870, any wage which a woman in England earned automatically became her husband’s property, through the ancient common law doctrine of coverture. Thus, societal values were far removed from the concept that a woman might earn her own wage and should be paid equally to a male colleague.
Only with the Trade Union Act 1871 did it become lawful for workers to form a trade union. Whilst some women were at the forefront of the burgeoning labour movement, for example, the instigators of the Matchwomen’s Strike of 1888, it is important to remember that throughout this period, up to 85% of men and 100% of women had no vote. In those times, it was unthinkable that any legislation requiring pay equality between men and women could appear on the Parliamentary agenda, not least because all the Members of Parliament were men, mostly aristocratic gentlemen who had never depended on a wage.
Finally, with the passage of the Representation of the People Act 1918 and the Parliament (Qualification of Women) Act 1918, women over thirty who could meet the property qualification gained the franchise and the right to stand for Parliament. At the same date, all men were granted the vote whether or not they held property. The right to vote was extended to all women over 21 years of age, regardless of their property ownership, in 1928.
One hundred years after married British women had become legally entitled to hold their own wages, the Equal Pay Act 1970 was passed. The Sex Discrimination Act 1975 came into force on 12 November 1975. Women in the UK first received the right to equal pay for equal work, however, only on 29 December 1975, when the Equal Pay Act 1970 came into force.
In considering the persistence of the pay gap between men and women in Britain, it is important to acknowledge that the idea that men and women should be paid equally for equal work is a relatively new concept in British history, only possible after a series of seismic cultural and legal shifts led to the recognition that women workers were human beings with legal rights.
Unequal Pay is a Means of Control and Domination
Unequal pay is still a means of social control and domination. Today, Britain needs laws against “modern slavery”, which was most recently defined and prohibited in the Modern Slavery Act 2015, which often involves human trafficking and the movement of workers around the country, from other countries and from other continents. In the popular imagination, human trafficking is often regarded as synonymous with sex trafficking of prostituted women and children, however, it affects a very wide range of workers, including people kept in agricultural work slavery, or domestic servitude. With contemporary insight into what constitutes the criminal offence of coercive control3 developing, the category of domestic servitude in present day Britain is wider than many people are prepared to acknowledge.
In contemporary Britain, it is rare to find a director of a business or public body who will confess in front of the media to holding a principled objection to the ideal that in their workforce men and women should receive equal pay for equal work. Nevertheless, any experienced human resources director, recruiter or employment lawyer knows that longstanding British cultural archetypes and stereotypes based on men’s and women’s respective physical and mental capabilities and aptitudes to perform different types of work remain persistent and widespread. These old-fashioned opinions remain potent, even though they are rarely voiced openly in public settings. Even now, most debates on equal pay – whether popular debates in the mass media or rarified arguments in the specialist Employment Tribunal – revolve around disputes concerning the nature of men’s and women’s job performance, attitude and ambition, as sex classes, gender identities, and as individual workers.
Some people, who favour the legal and political theory of philosophers like John Rawls4, believe that the existence of the gender pay gap is wrong as a matter of social justice and equality. Other people, who favour the law and economics theory of philosophers like Richard Posner5, see the gender pay gap as evidence of inefficiency in the operation of the labour market. The Government Equalities Office (“the GEO”) uses the language of “fully capitalising on the talent and experience of women”6.
The Important Differences between Unequal Pay and the Gender Pay Gap
Over four decades after the Equal Pay Act 1970 came into effect, there remains a significant discrepancy between the wages which men earn and the wages which women earn. It is currently fashionable to call this phenomenon the “gender pay gap” and to use that term to describe both unequal pay which is paid in breach of the equal pay or sex discrimination laws and pay differences which do not breach those laws. Therefore, it is vital for people who need to understand the Regulations to understand the conceptual differences between unequal pay caused by unlawful pay structures (ie where women receive lower pay than men for equal work) or by unlawful sex discrimination (ie where conscious or subconscious sexism puts men into the higher-value jobs), and the kind of gender pay gap which is caused either by subtler structural social inequalities, or by legally-justified indirect sex discrimination, both of which are regarded as lawful in Britain.
In real life, however, the unlawful and lawful causes of individual women colleagues earning less than individual male colleagues in a particular workplace tend to co-exist, overlap and intertwine in complex ways. Therefore, in the future, powerful arguments could be developed that the split in UK law between the lawful and unlawful causes of the differences between men’s and women’s pay – a split based on a dichotomy between formal legal equality and substantive equality of outcome – conflicts with important norms of international human rights law7.
The gender pay gap has ignited the imagination and interest of the media in a way which unequal pay never did, and the introduction of mandatory gender pay gap reporting has added fuel to the fire. The detail may seem tedious and statistical, or even arithmetical, however, pay transparency is proving to be a radical stimulus for both the enforcement of existing equal pay law and the widespread review of recruitment and promotion practices across the labour market.
It is clear to me that without a concerted and logical plan properly to enforce the rights originally granted by the Equal Pay Act 1970 to women workers in Britain, equal pay for women and men will not be achieved in our lifetimes. Therefore, despite their shortcomings, I welcome the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 as an important step forward, and I commend them to you.
1Somerset v Stewart (1772) 98 ER 499
2See, for example, Pat Hudson, “Women’s Work”, BBC, 29 March 2011, https://www.bbc.co.uk/history/british/victorians/womens_work_01.shtml and Mairead Enright, “Birmingham Women and the Factory Acts”, University of Birmingham, 21 March 2018, https://blog.bham.ac.uk/legalherstory/2018/03/21/birmingham-women-and-the-factory-acts/
3Serious Crime Act 2015, section 76
4John Rawls, “A Theory of Justice”, Oxford University Press, 1972
5Richard Posner, “Economic Analysis of Law”, Boston: Little, Brown & Company, 1973
6See, for example, “Government Response”, 17 January 2017, Appendix to “Gender Pay Gap”, Women and Equalities Committee’s Second Report of Session 2015- 2016, HC 584, 22 March 2016, https://publications.parliament.uk/pa/cm201617/cmselect/cmwomeq/963/96302.htm#footnote-016
7For the view that international human rights law requires states to secure not merely formal legal equality for women but substantive gender equality, see Professor Kathleen Lahey, writing in the context of taxation: “Gender, Taxation, and Equality in Developing Countries” (UNWomen, 2018); “Feminist Judging for Substantive Gender Equality in Tax Law: Changing International and Comparative Constitutional Contexts” in “Feminist Judgments: Rewritten Tax Opinions”, ed. Brigitte J. Crawford and Anthony C. Infanti (Cambridge University Press, 2017) 222-52; “Gender Equality and Taxation in Vietnam” (UNWomen 2016, with Pham Thu Hien)