The Good,the Not So Good and the Ugly: Gender Equality,Equal Pay and Austerity in English Local Government

Abstract

Drawing on theories of responsive and reflexive legislation and gender mainstreaming, this article examines the implementation of the gender equality duty and the Single Status Agreement in five English local authorities between 2008 and 2010. Both of these initiatives coincided with the global financial crisis. The data highlights how organizational restructuring following budget cuts resulted in the separation of these two important initiatives between equality and human resource management teams, preventing the duty from reaching the high expectations of the Equal Opportunities Commission and the Women and Work Commission. The reliance on equal pay legislation and the failure to use the gender equality duty missed an opportunity to move away from adversarial forms of legislation and towards more responsive forms of regulation of pay equality.

Keywords

equal pay gender equality duty local government

Introduction

The period since 2007 has thrown up a curious set of contradictions in relation to gender equality and public services in the UK. The gender equality duty (GED), introduced in April 2007, placed a legal requirement on all GB public authorities, when carrying out their functions, to have due regard to the need to eliminate unlawful discrimination and harassment on grounds of sex and to promote equality of opportunity between men and women.¹ The GED was hailed as ‘The biggest change in sex equality legislation in thirty years, since the introduction of the Sex Discrimination Act itself’ (EOC, 2006: 2) and was the last major initiative of the Equal Opportunities Commission (EOC) before it was subsumed into the Equalities and Human Rights Commission (EHRC). At the same time there was a major collective agreement between the three main public sector unions and local government employers to introduce equality proofed pay structures as part of the Single Status Agreement (SSA), on-going since 1997 (Conley, 2014; McLaughlin, 2014; Oliver et al., 2014; Rowbottom, 2007).

Together, these two events signalled a positive phase for the advancement of gender equality. However, in what has become perhaps the worst case of bad timing for gender equality in the UK, the introduction of the GED and the SSA coincided with the global financial crisis. The political response to the crisis in most economies has been typified by what have become collectively known as austerity measures, the central plank of which rests on significant cuts to public spending. In the UK austerity impacted significantly on funding to local government, with unprecedented budget cuts for local authorities. In addition to this unhappy coincidence, the SSA, unfunded by central government, resulted in human resource management teams and trade unions in local government being locked into adversarial, complex and costly pay negotiations, resulting in tens of thousands of equal pay cases being taken to Employment Tribunals (McLaughlin, 2014).

Although there is now an extensive body of research (e.g. Annesley, 2014; Conley, 2012a; Rubery and Rafferty, 2013) on the impact of austerity on gender equality, and a growing body of research on the implementation of the SSA in local government (Conley, 2014; McLaughlin, 2014; Oliver et al., 2014; Rowbottom, 2007), there is little sociological research on the implementation of the GED, and none that we are aware of which brings together primary research data on these two key initiatives for women’s equality in the UK. The purpose of this article is therefore to report on research which examined the implementation of the GED in relation to equal pay in English local authorities during this turbulent time for gender equality. We examine how this sat alongside SSA negotiations and pay equality in five case-study local authorities. Our empirical focus is on England because Northern Ireland has specific equality legislation for public authorities and the Equality Act 2010 introduced significant differences between England, Scotland and Wales in relation to the public sector equality duty. The SSA also followed a different timeline in Scotland.

Gender Equality, Mainstreaming and the Law

Gender equality practices and discourses were first introduced in the UK in the 1980s as a means for employers to fulfil their obligations for implementing sex discrimination legislation. The Sex Discrimination Act and Equal Pay Act, now contained in the Equality Act 2010, are reactive anti-discrimination legislation in that they can only be enforced after discrimination has taken place. They are based on individual rights, meaning that enforcement requires workers, often from the most vulnerable social groups, to take legal cases and brave the adversarial UK judicial system. The limitations of reactive law were highlighted by Hepple et al. (2000: xiii) in saying ‘the present [legal] framework places too much emphasis on state regulation and too little on the responsibility of organisations and individuals to generate change’.

The limited ability of individualized, reactive legislation to address gender discrimination embedded in institutional and organizational decision-making was one of the issues feminist scholars and women’s organizations hoped that gender mainstreaming might address (e.g. Beverage and Nott, 2002; Rees, 2005). The aim of gender mainstreaming is to take a proactive, transformative approach to gender equality in public policy by scrutinizing, usually by using equality impact assessment, organizational structures, decision-making and policy (Rees, 1998). The objective is to make embedded gender discrimination transparent and to change organizational behaviour accordingly.

There are several criticisms of gender mainstreaming, and, while it is beyond the remit of this article to engage fully with the debate, two strands of the critique have influenced reform of gender equality legislation in the UK. The first of these is in relation to the level at which gender mainstreaming is conducted and by whom. Beverage and Nott (2002) distinguished between expert-bureaucratic and participative-democratic forms of gender mainstreaming. Expert-bureaucratic forms of gender mainstreaming are centralized, often at government policy-making levels and involve gender mainstreaming experts. Critics have argued that expert-bureaucratic forms of gender mainstreaming can become incorporated or integrated into the mainstream rather than challenge it (e.g. Beverage and Nott, 2002; Fraser, 2009). Others have argued that gender mainstreaming, like any other attempt to influence policy, requires a process of negotiation (Eisenstein, 1996; Newman, 2002).

Participative-democratic forms of gender mainstreaming are devolved and involve the direct participation of the disadvantaged groups that equality policy is designed to benefit (Beverage and Nott, 2002: 301). This model challenges the assumption that experts know what is best for disadvantaged groups and gives voice to those who do not have a presence or voice in decision-making fora. It is not without problems since consultation processes are usually controlled by equality experts, and superficial consultation processes can simply provide a veil of legitimacy or can off-load work onto under-resourced groups (Donaghy, 2003). Furthermore, democratic and bureaucratic forms of gender mainstreaming are not mutually exclusive and are less polarized in practice (Donaghy, 2003; Verloo, 2001; Walby, 2005).

The second strand of critique is in relation to the resilience or embeddedness of gender mainstreaming models. Veitch (2005) noted that, in the UK, gender mainstreaming was introduced at the highest levels in the early years of the New Labour government in 1997. The approach to gender mainstreaming described by Veitch was expert-bureaucratic and relied heavily on the support of senior women politicians. Veitch’s account shows how gender mainstreaming at this level was easily dissolved when its champions lost political power. Veitch argued that only a legislative footing would overcome this vulnerability:

A legal basis for gender mainstreaming would guarantee resources … Legislation would arguably strengthen the focus on gender mainstreaming and institutionalise it in a way that so far has not happened. (Veitch, 2005: 605)

The GED emerged as a way of combining a legislative and mainstreaming approach to gender equality in public authorities (EOC, 2006: 7). The GED and the race and disability equality duties that preceded it took a different approach to equality than that contained in anti-discrimination legislation (Fredman, 2001; Hepple, 2010; O’Cinneide, 2005). By comparison the duties were proactive, requiring public service organizations to take action to redress patterns of disadvantage, to promote equality and eliminate discrimination in their employment and recruitment practices, with the expectation that a proactive approach would pre-empt the occurrence of individual cases of discrimination. The duties covered public service users as well as employees to ensure that members of the public who belong to vulnerable groups are also considered when decisions concerning public services are made.

This type of proactive legislation is often described as responsive or reflexive (e.g. Fredman, 2001; Hepple et al., 2000; McCrudden, 2007; O’Cinneide, 2005). It is reflexive because it is designed to encourage policy-makers in organizations to reflect on their policies and decisions and it is responsive because it should take on board the views of the people that policies and decisions affect in order to change the behaviour of the organization in response (see Conley, 2017 for a detailed analysis). To achieve a responsive approach, the three duties had incremental emphases on engagement with civil society groups who had an interest in equality in public service delivery and employment. The GED had a specific requirement for local government employers to consult trade unions and local communities, therefore offering an intrinsically collective approach to improving equality outcomes (Conley, 2014). The reasoning is that the law becomes a vehicle for greater negotiation and joint working rather than a last resort to litigation when negotiation fails.

The GED was not a replacement for the anti-discrimination legislation, but a complementary precursor intended to reduce the institutional influences that lead to individual cases of discrimination. The reflexive and responsive elements of the GED had some similarities to the expert-bureaucratic and participative-democratic dimensions of gender mainstreaming identified by Beverage and Nott (2002). The inward, organizational focus of the reflexive elements of the legislation map onto an expert-bureaucratic focus for gender mainstreaming, while the responsive elements of the legislation have more in common with a participative-democratic approach. How these aspects of the legislation are interpreted in its implementation might therefore reflect the type of equality mainstreaming adopted in public authorities.

Equal Pay and Participation

The GED, race and disability duties were incorporated into the Equality Act 2010 in a single public sector equality duty (s. 149) with some significant changes. One crucial difference between the GED and the public sector equality duty in the Equality Act 2010 is in relation to pay equality. While the GED required public authorities to ‘consider the need to include objectives to address the causes of any gender pay gap’ (EOC, 2006: 6) the specific duties for England² have no duty in relation to equal pay and only in 2017 introduced regulations on gender pay gap reporting. Another major difference is that there is no longer a requirement for English public authorities to consult trade unions or stakeholders. The issue of equal pay therefore again relies entirely on reactive anti-discrimination legislation.

The loss of a reflexive and responsive legislative route to pay equality is particularly significant for local government because the issue has engaged human resource managers and trade unions in conflict over equal pay in this sector since 1998 following the Single Status Agreement (SSA). The SSA is a national collective agreement between local government employers and the three main local government trade unions (UNISON, GMB and T&GWU now UNITE). The agreement was intended to harmonize the pay and conditions between manual and clerical grades in local government. The requirement to undertake job evaluation schemes to facilitate harmonisation, however, uncovered extensive and endemic gendered pay inequality (Rowbottom, 2007). Unlike similar agreements in other parts of the public sector, the SSA was not supported by additional funding from central government and therefore was estimated to represent an unbudgeted cost of £5 billion pounds to local government employers (Keter, 2009).

The cost implications have meant that progress on implementing the SSA has been fraught with difficulties and excruciatingly slow (Oliver et al., 2014). Where trade unions have been unable to secure pay equality for their women members via collective bargaining they have resorted to taking tens of thousands of legal cases. In 2004 a second agreement was signed that placed a deadline of April 2007 for completion of the requirements of the SSA in every local authority, which coincided with the year in which the GED came in to operation. Gender equality should have therefore been at the forefront for public service employment and delivery during this period. The Women and Work Commission (2006: 92) recommended that the GED should be used as an important tool for closing the gender pay gap in the public sector without the need for litigation. Instead, Oliver et al. (2014: 239) note that equal pay cases outstanding at employment tribunals mushroomed from 8000 in 2004 to 62,000 in 2008.

Austerity

If these events were not problematic enough for local government employers and trade unions, the global economic crisis and the political response of austerity has since resulted in unprecedented cuts to public spending, particularly in relation to the amount allocated to local authorities. Austerity measures are usually charted from the 2010 Emergency Budget of the then newly elected Conservative-Liberal Democrat coalition government, but the effects of the economic crisis were felt in local government at the time of our research in 2008. An Audit Commission report identified that 127 local authorities had almost £1 billion invested in Icelandic banks that collapsed early in the financial crisis (Audit Commission, 2009), affecting some of the case study authorities in our research. Furthermore all local authorities were experiencing public spending caps implemented by the Labour government and were already retrenching in anticipation of future cuts (Eaton, 2008; Mulgan, 2008).

The anticipation of public spending cuts by local authority leaders was vindicated as the 2010 Emergency Budget introduced cuts totalling forty per cent for local authorities (LGA, 2014). There was a failed attempt by the Fawcett Society, using the GED, to challenge the Emergency Budget on the grounds that it disproportionately affected women and that the government had not conducted an equality impact assessment (Conley, 2012b). Although the Fawcett case established that the government was subject to the GED and had not taken the due regard required by the legislation to the gender impact of the Emergency Budget, the austerity cuts were implemented. Karamessini and Rubery (2014) argue that the ensuing cuts are increasing work intensity and hours of work in the public sector, with a particular impact on women. Furthermore, although public sector employment is considered to reduce the gender pay gap, recent figures indicate that, while there has been a slight decrease in the gap overall to 19.1 per cent, it has increased in the public sector from 9.5 per cent to 11 per cent (ONS, 2014: 15).

The Research Problem and Method

The main theoretical debates on the effectiveness of equality legislation in the UK are in relation to the emergence of proactive responsive/reflexive legislation and how it might work in tandem with more traditional forms of reactive anti-discrimination legislation. These debates have featured largely in law journals (e.g. Fredman, 2001; Hepple, 2010), with limited sociological or empirical exploration, particularly in relation to the impact of austerity on the organizational implementation of the legislation. Similarly, the theoretical debates on forms of gender mainstreaming have not, so far, engaged with responsive and reflexive debates in equality legislation.

We identify four research questions that address these gaps. Firstly, how were the innovations of proactive, reflexive and responsive legislation embedded in the GED implemented and did they succeed in changing the behaviour of local authorities? Secondly, did the gender mainstreaming provided by the GED take expert-bureaucratic or participative-democratic forms? Thirdly, did the GED work in tandem with the equal pay legislation as expected by the Women and Work Commission? Lastly, what was the impact of the economic crisis on the implementation of the GED?

The research was carried out in five English case study local authorities. The case studies were selected to represent different locations (two in the North and two in the South of England and one in London) and to cover a range of types of local authority (one county council, three city councils and one London Borough). The five authorities were at different stages of implementing the GED and the SSA. They were varied in their political orientation, with two of the authorities being led by Labour Party councillors, one by the Liberal Democrats, one with no overall control and led by a coalition of Liberal Democrat and Labour councillors, and one Conservative-led council. The major part of the research took place between 2008 and 2010 when the GED had been in place for between one and three years and change under the Equality Act was anticipated. All of our case study authorities were undergoing restructuring both in relation to the SSA and in anticipation of impending public spending cuts. One of the key themes that emerged from our research was the state of flux in which equality teams were working to implement the GED, in which their future roles as equality officers were uncertain. We have therefore attempted to remain in touch, where possible, with our initial contacts in our case-study authorities in a series of brief follow-up conversations to trace the ongoing effects of change.

The SSA deadline of April 2007 had passed and two of our case studies had met this deadline but three had not. Equalities advisors and HR officers within the case study organizations viewed the research as a timely opportunity for more in-depth discussion of the likely impact of the GED and the Equality Act and provided access to key personnel and documents to inform the research. Interviews were conducted with lead equality actors in each authority, including corporate equality teams, HR managers, trade unions, service user groups, senior officers and elected members with responsibility for equality. Interviews were supplemented with documentary data collection. We conducted interviews with key national policy advisors and trade unionists who were leaders in shaping new equalities legislation and collective agreements, and were policy drivers for the future. In the initial phase of the research we conducted a total of 60 semi-structured interviews. Six of the interviews were with men (five white and one ethnic minority) and 54 interviews were with women (three ethnic minority and 51 white). Later interviews were conducted in 2015–16 with one national representative of local government employers and two of the trade unions’ lead negotiators in the SSA, who reflected on the overall issues and outcomes of the agreement and how far the GED had been a consideration. The litigious nature of the SSA meant that in two of our local authorities HR managers and trade unions were reluctant to discuss it and therefore the data is drawn from only three of the case studies for this aspect of the analysis.

Local Government Restructuring and the GED

One of our most consistent findings was that restructuring and change in response to budget deficits was endemic in our case studies, with a particular impact on equality policy and structures. Local political administrations had introduced organizational restructuring supported by ‘business transformation’ agendas, which were formed with the costs of the SSA and cutbacks in budgets from centrally imposed reductions in mind. We found changes in the location and brief of equalities advisors, uncertainty about whether this would strengthen their strategic role or reduce their influence, and considerable uncertainty about the future, particularly the instability in the resourcing and staffing of the equalities team.

The whole organization has basically been swamped under change and people have got change fatigue …, if you don’t get us out of it soon, everybody’s either going to be outsourced, down the road or wherever. (Equality Officer, white woman, city council 1, 2008)

In the midst of this organizational uncertainty was a prevailing concern that gender equality had lost any immediacy. There was a sense internally that, if decisions needed to be made about where to focus resources, ‘gender has been done’ (Breitenbach et al., 2002; Itzin and Newman, 1995). In one case study authority this was justified because women had reached senior positions in the authority:

Well I think there was a view by the organization that because there were quite a number of women in senior positions within the city and the local authority, that gender was no longer a priority really. (Equality Officer, white woman, city council 1, 2008)

This concern reflects some of the critique of expert-bureaucratic forms of gender mainstreaming. The issue is not that women reach senior positions, but rather the organizational perception that this alone is sufficient to demonstrate gender equality. Perhaps the most worrying finding of our research was that the GED was being implemented at a time when most of the equalities officers we interviewed felt that gender equality was no longer considered to be a priority in their authority.

Participation and the GED

The GED led all our case study authorities to attempt to operationalize the responsive and participative elements of the legislation by putting consultation processes in place. The participative approach to implementing the GED in service delivery was to form stakeholders’ consultative groups initiated and controlled by the authority. In most of the cases consultation largely took the form of equality teams organizing varying forms of consultative fora. Some of the arrangements were formal and organized:

Externally what we’ve got is, we used to have a race forum, a disability forum and a women’s forum. What we’re in the process of doing now is developing that so that we actually have forums across each of the different equality strands, so those would be our equality hubs once they’re set up and they will come together as an equalities assembly. Each of the hubs will have equality champions who will be our links with the hubs and those will provide an element of expertise, if you like. (Equality Officer, white woman, city council 2, 2008)

Arrangements in other local authorities were somewhat vague and ad hoc:

No, we didn’t have specific … well yes we did, we had specific representation … it’s … wasn’t a fixed concrete … it was fairly flexible. (Equality Officer, white woman, city council 3, 2009)

In two of our case-study authorities there had been an interesting development in that women’s consultation groups originally set up by the authorities had chosen to move to an independent status to organize beyond the confines of the authority consultation mechanisms. One of these groups formed in city council 3, where the authority’s approach to consultation was ad hoc and informal. Dissatisfied with the council’s consultative arrangements, the women’s group formed an independent organization that was instrumental in setting up more formal and externally accountable structures within the council in 2013, highlighting the blurred boundaries between participative-democratic and expert-bureaucratic approaches (Beverage and Nott, 2002). The second group formed in city council 1 from the council’s consultative mechanisms for GED:

Well we were quite instrumental in setting up a [City] women’s forum … which was initially going to be a council consultative committee … but the outcome of it was that the women didn’t want to be a consultative committee, they didn’t want to be connected with the council and they formed their own forum … (Equality Officer, white woman, city council 1, 2008)

The need to be independent in relation to the consultation process raises important questions about how participative-democratic processes are interpreted, how the voices of disadvantaged groups are perceived and facilitated by local authorities and how far their ideas and concerns are listened to and acted upon (Donaghy, 2003). One of the members of a women’s stakeholder group that we interviewed stated that they had wanted to analyse and input directly into the gender equality schemes that were being put in place by senior management in public authorities in the county but had met with resistance to anything more than non-committal and superficial consultation:

… we were trying to be absolutely thorough about how we want to analyse everybody’s gender equality schemes so that we could pick up points to work with them to say – your scheme appears to be good at this, or bad at this, can we work with you to try and see why… Well that didn’t happen. (Stakeholder group lead, white woman, county council, 2009)

This women’s group decided to opt out of the local authority consultative arrangements and form a local branch of a national women’s organization to lobby the local authority independently. However, three years later, in 2012, the stakeholder group lead who we had originally interviewed told us how she had decided to stand as a councillor in the county and had been successfully elected. Her motivation was that she could better influence the gender equality agenda from a senior position within the council, again illustrating the blurred distinction between expert-bureaucratic and participative-democratic approaches. If consultative mechanisms are ‘top-down’ and designed primarily for compliance with legislation, they may be interpreted as an expert-bureaucratic mainstreaming process rather than participative-democratic and may not meet the responsive spirit of the legislation or the expectations of stakeholders.

Responsibility for the GED – the HR/Equality Team Divide

Part of the restructuring that was taking place in our case-study authorities was to move the focus of equalities teams from employees to the equality needs of service users based on an assumption that there is a clear divide between what is an HR/employee-related focus for equality and what is a service delivery/community issue for equality teams.

Traditionally, this [equality] team focused purely on employment … didn’t focus on service delivery at all. Again, going back five years or so, there was a recognition that actually that wasn’t sufficient. … The recognition was that we needed to focus much more on service delivery… (Equality Officer, white woman, city council 1, 2008)

While cost saving and reducing staff and resources were generally part of the aim of the restructuring in most of our case study authorities, the change in focus of equality teams from employment to service delivery was underpinned by a move from a social justice orientation to equality towards a focus on a ‘business case’, so that the core work of the equalities team was to be outward or ‘customer’ facing (Conley and Page, 2015). Along with this split came a division of duties in all our case-study local authorities with responsibility for the implementation of the proactive measures in the GED falling to the equalities team focused on the equality needs of service users, while equality for employees fell largely under the remit of the HR team. The main focus of HR teams appeared to be on preventing potential tribunal cases under the reactive anti-discrimination legislation, discussed below in relation to the SSA. The separation of duties between equality and HR teams meant that, although the GED was meant to benefit women both as public service users and public authority employees, it had very little impact on women working in our case-study local authorities. The consultative mechanisms organized by equality teams were open to public service users but there were few examples of equivalent consultative mechanisms to meet the responsive elements of the GED for women employees.

Trade Union Involvement in the GED

All our case-study authorities recognized and negotiated with the main public sector trade unions in relation to staff interests. The legislation stipulated that trade unions should be consulted on incorporating the GED into employment policy as the obvious channel for consulting women employees. However, because responsibility for the GED lay primarily with equality teams, whose focus was service delivery and the equality issues it raised for ‘customers’ rather than employees of the authority, there was no real joint working between them and trade unions: Interviewer:

Do trade unions come directly to you, or would they only approach you through HR?

Interviewee:

I’ve not known them come directly to us, but I guess there’s nothing to stop them doing that. (Equalities officer, white woman, city council 2, 2008)

Where we did meet trade unionists interested in working on the GED, they were union equality representatives who were not directly involved in collective bargaining (Bacon and Hoque, 2012; Moore and Wright, 2012) or decision-making structures, meaning the opportunities for them to become involved in mainstreaming gender equality, central to the GED, were limited. We also found that the lack of facility time for trade union equality representatives hampered their engagement with the GED:

I think again it’s about time … well it’s not about commitment, because the trade union is committed very strongly to equality. (Trade union equality representative, white woman, city council 1, 2008)

The separation between service delivery and employment, the limited input to collective bargaining and scarce time resources for equality representatives meant that union input on the implementation of the GED was greatly reduced. In one case-study authority a senior equalities manager suggested that trade unions could have a more important role in the GED if they were involved in equality impact assessment, feeling that their voice would add weight:

It might be worth going back to them and talking to them [trade unions] about their active participation in women’s equality. They should have an active role in terms of equalities impact assessments, shouldn’t they? If there’s something going through that’s not adequate, and we might have shouted from the rooftops, but nobody’s responded to us. They might respond to the trade unions. (Senior lead for equality, white woman, city council 3, 2009)

Employers consulting unions on aspects of gender equality outside of equal pay has never been a widespread practice, even in local government (Cockburn, 1991; Lawrence, 1994). Since many of the contributory factors of unequal pay between men and women stem from wider gender equality issues such as unequal care arrangements leading to part-time work and vertical and horizontal job segregation, a greater input from trade unions on employer decisions relating to these issues might also indirectly improve pay equality.

In summary, budget cuts, real and anticipated, had led to restructuring that had divided the equality function in all of our case study authorities. Part of the division was to focus equality teams on the ‘business case’ of service delivery and ‘customers’ rather than employees. Restructuring in all cases resulted in a division of responsibilities, with equality teams taking the lead on delivery of the GED. To meet the responsive elements of the legislation all authorities had implemented consultative mechanisms for women service users, but often in a top-down fashion that, while meeting compliance requirements, did not offer women’s representative organizations sufficient opportunities for real engagement. There were few equivalent consultative mechanisms for women employees as the majority of the trade union activity and HR involvement was in response to the SSA, which we examine in more detail below.

Equal Pay and the SSA

The SSA was bound up with reactive equal pay legislation that hinges on litigation, making it difficult to get HR officers to talk in any detail about the progress of the SSA in the three authorities where the agreement had not been settled. This was because the negotiations with the trade unions were at a sensitive juncture and, as the national agreement on the deadline for completion had already passed, there was a great deal of pressure to reach an agreement (cf. McLaughlin, 2014: 7), but there were some difficult and longstanding legal cases related to equal pay and the job evaluation outcomes in the three authorities that had not settled.³ It was clear that the SSA was taking up the majority of HRM time in relation to equalities work:

There’s only so much we can bite off at the moment because we’ve got … a huge piece of work to do at the moment around equal pay in the organization which is very challenging. (HR Manager, white woman, city council 1, 2009)

Equal pay was an issue where the split between equality teams and HR was distinct. Equal pay was dealt with entirely under the SSA and not the GED, and was exclusively handled by specialist HR managers in each authority. We did not find any examples of where the GED was being actively used to close the gender pay gap outside of the SSA in our case study authorities. Nor was there an example of where equality teams were directly involved in the SSA negotiations. The view at local authority level was that the SSA and not the GED was the main driver for equal pay:

I think definitely the push was single status and I can’t pretend it was anything else … I think the gender duty has assisted understanding along the way, is how I would see it, but the focus was single status, again our liability in terms of settling compensation claims was a really big push for us to resolve a lot of the issues. But the gender duty has certainly helped along the way in terms of encouraging the organization to think outside of resolving pay issues. (HR Manager, white woman, city council 1, 2009)

We were conscious that our data from the case study authorities was limited in relation to the SSA because of the reluctance of employers and trade unions to discuss it at the critical time of our fieldwork. We therefore sought an overview from two national trade union leaders and an employer representative involved in the SSA. The national actors supported our case study findings. All felt that the GED had no significant impact on equal pay in local government and that the threat of using the reactive equal pay legislation to take large numbers of individual cases to employment tribunal had been the driving force.

Despite the failure to use GED and SSA negotiations to work in tandem to address pay inequality at a local level, there was some transference of good practice in that a requirement to conduct equality impact assessments on decisions made in relation to the SSA was inserted into the national implementation agreement. In one case study, however, there was a feeling that if the equality impact assessment focused narrowly on the results of the SSA, the bigger issue of equal pay for women could be lost. It was explained that this could happen if the impact assessment simply recorded the negative impact on men of the removal of bonuses that had not been historically paid to women of the same grade.

In those authorities that were prepared to discuss the SSA with us it was clear that there had been some difficult decisions in relation to ‘winners’ and ‘losers’ (McLaughlin, 2014: 11; cf. Guillaume, 2015) in relation to re-grading, with the threat that jobs may be outsourced to avoid equal pay issues. Deakin et al. (2015: 389) note that trade unions had not been prepared for the amount of downgrading that would take place following job evaluations required for the SSA. Not surprisingly, difficult decisions in relation to re-grading as a result of the agreement were impacting on morale in our case-study authorities where the agreement had not yet been reached:

Morale is a big issue for us at the moment, we’ve got a big pay and grading exercise on, which is tackling historic inequality and trying to bring about a fair grading process. I’m sure if you’ve been out and about in local authorities, that will be a fairly common theme. Because of the uncertainty that exists with people around that, there is naturally quite a lot of concern and worry for people. Also, there’s a lot of organizational change going on. People unsure about their jobs. (HR Manager, white woman, city council 1, 2009)

Our interviews with national trade union and employers’ representatives ascertained that a lack of funding had been the biggest obstacle to implementing the SSA. The trade union and employer national officers felt that the SSA had not directly resulted in additional outsourcing, but there was a strong feeling that the SSA was not dealt with fairly in comparison to the similar agreement, Agenda for Change, in the NHS, which was also evident in our case-study authorities:

I think in single status, those organizations that have taken their role seriously in being able to reduce the gender pay gap have been substantially penalized. But they have felt that we respect some of the types of professions where women predominate, such as the caring professions, because in some other sectors, there have been one of two options. Either the government comes in and pays you a whole lot more to introduce a new scheme, which is what has happened in health, or you outsource and you break the company up. We’ve chosen not to do it and it’s cost us a lot, but we’ve been happy to do it because we think it’s the right thing to do. (HR Director, BAME man, London Borough Council, 2009)

Furthermore, similar to the findings of McLaughlin (2014), there was a feeling that authorities that had not outsourced their services were unfairly paying the price for implementing equality-proofed pay structures. An alternative argument is that those authorities who had delayed the implementation of the SSA had fallen foul of the change in the law that meant that much larger back-dated settlements needed to be paid (Deakin et al., 2015). Since most of our case-study authorities were undergoing change, the threat of outsourcing or dissolution of areas of service provision was a very real possibility, as is the case for local government more generally (Bach and Strolney, 2014; McLaughlin, 2014). Somewhat significantly for the implementation of the GED, equality teams in our case-study authorities were under threat of closure. In our first follow-up interviews the equalities teams in two of our case studies had been disbanded and the team members had either left the authority or had been relocated to other departments (Conley and Page, 2015), highlighting the continued susceptibility of mainstreaming initiatives even when underpinned by a statutory framework.

Conclusions

The contribution of this article is to bring together legal debates on new forms of equality legislation and sociological debates on gender mainstreaming by providing an empirical examination of two initiatives, the GED and the SSA, that were intended to have had a significant positive impact on gender equality in the first decade of the 21st century. Taking the last of our research questions first, we found that, at the time of the introduction of the GED, the economic crisis had already started to impact negatively on equalities work in our case-study authorities. All of the authorities responded by undertaking organizational restructuring that impacted significantly on the work of equalities teams. Part of the restructuring was to re-frame equality in terms of a business case rather than social justice, which meant equality teams were required to be largely customer/service delivery focused, with limited input into equality issues relating to employees. In all of our case-study authorities operational responsibility for the implementation of the GED lay with equalities teams, but most of the equalities officers we interviewed felt that, at a time of competition for scarce resources, gender equality was no longer considered to be a priority in their authority. Therefore, contrary to Veitch’s (2005) belief that a statutory footing for gender mainstreaming would reduce its dependence on political support, the reduced status of gender equality and the closure of equality units in response to restructuring in two of our case-study authorities suggest that the evidence for this is limited.

In answer to our first research question, the GED had resulted in new, responsive behaviour in all of our local authorities (Fredman, 2001; Hepple et al., 2000; McCrudden, 2007; O’Cinneide, 2005). Our analysis, however, identifies that responses were mediated through organizational processes and restructuring that distorted the intended outcomes of the legislation. Equalities teams had attempted to introduce consultative structures to operationalize the responsive, proactive and participative dimensions of the GED. The coverage of the consultative groups, however, reflected the customer/service delivery focus of the equality teams, meaning that little consultation on the GED or proactive engagement with gender equality took place with women employees. Furthermore, the service delivery focus of equalities teams meant that they had limited engagement with the trade unions on the implementation of the GED, despite the requirement in the legislation that trade unions be consulted. Our findings indicate that any trade union engagement with the GED largely fell to union equality representatives, who did not have access to decision-making or negotiation structures, thus limiting their participation in mainstreaming gender equality into decision-making processes, as intended by the GED.

In relation to our second research question, our analysis provides an empirical example of the blurred boundary between participative-democratic and expert-bureaucratic forms of gender mainstreaming (Donaghy, 2003; Verloo, 2001; Walby, 2005). In three of our case-study authorities women’s groups used the GED to become involved in consultation structures on public service provision, supporting the idea of a participative-democratic model. However, there was evidence that the form of consultative mechanism put in place in some of our case studies was ‘top-down’ and closely controlled by the authority, resembling expert-bureaucratic forms of gender mainstreaming. This form of consultation may have satisfied the local authorities’ compliance with the legislation, but it left the women’s groups concerned that their participation had only superficial impact on decision-making in the authority. As a result, in two of the case studies, women’s groups had used the GED to strengthen their position both within local authority decision-making structures and independently outside of tightly defined and controlled consultative mechanisms. Our findings, therefore, highlight the contested nature of gender mainstreaming in organizations (Walby, 2005) but, importantly, that the GED provided women’s groups with a tool to both work with and resist expert-bureaucratic forms.

New forms of reflexive and responsive equality legislation such as the GED should work in a complementary, two-pronged way alongside anti-discrimination legislation such as the Equal Pay Act. The GED was intended to provide a legal basis for gender mainstreaming, working towards transformational change of institutional barriers to gender equality, including pay equality, while the equal pay legislation is necessary to provide a remedy for individual cases of discrimination. In response to our third research question, our findings suggest that this complementary action did not happened in local government because the responsibility for implementing the two initiatives was separated between equality teams and HR. Furthermore, there is little evidence that HR teams picked up the responsibility for implementing the proactive responsive legislation or the mainstreaming function of the GED since they were concerned almost entirely with the reactive anti-discrimination legislation and the immediate threat of equal pay litigation that resulted from the SSA. Therefore, despite the hopes of the Women and Work Commission in 2006, there was no evidence that the GED was being used to strengthen equal pay initiatives.

The SSA absorbed a colossal amount of time, effort and money, and the lack of government funding to meet equal pay claims resulted in difficult decisions with a detrimental impact on morale and job security. The GED offered an additional route to address equal pay issues beyond the SSA without resorting to costly and time-consuming litigation. Our research indicates that the legislation was largely ignored by HR and trade unions because, at the time of its implementation, the SSA was all encompassing. Even so, the GED would have offered a useful vehicle for public sector employers and trade unions to continue to work proactively on equal pay and equality more broadly following the completion of the SSA. The brief window of opportunity to do this was closed with the passing of the Equality Act 2010, which does not include specific duties in England on equal pay or on engagement with trade unions or other stakeholders. The situation is different for Scottish and Welsh local authorities, and further research is required to examine how far employers and trade unions in those regions take up the opportunity to approach equal pay differently by using the proactive duties.

Footnotes

Acknowledgements

The authors would like to thank the equality and trade union officers who gave their time to participate in the research and the editor, Dr Shireen Kanji, for her guidance and encouragement.

Funding

The research was funded by the British Academy.

Notes

Hazel Conley is Professor of Human Resource Management at Bristol Business School, University of the West of England.

Margaret Page is a Senior Visiting Research Fellow at Bristol Business School, University of the West of England. Professor Conley and Dr Page co-authored Gender Equality in Public Services: Chasing the Dream, published by Routledge in 2015.

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