20 December 2018

Focus on female workers: flexible working and equal pay

With women accounting for almost 60% of practising veterinary surgeons and over 80% of students enrolling on degree courses, it is vital to recognise differences between the genders in the workplace. This applies not only in your practice, but for the professional as a whole.

Stephenie Malone, a specialist healthcare employment solicitor from Harrison Clark Rickerbys, explains some of the important legal considerations.

Unlike the STEM industries, which report around 13% of job holders as female, veterinary practices have little issue attracting female talent.

However, as has been highlighted by the introduction of Gender Pay Gap reporting requirements in April 2017 – applicable across all industries – the progression and retention of women in higher managerial roles across all businesses continues to be a challenge.

Despite women being in the majority of the 20,000 vets across the UK, the gender imbalance is commonly reversed for those occupying the senior positions; owner managers and those sitting at board level within large vet corporations are predominantly male.

It may be that it is easy to justify this as “the motherhood penalty” or put it down to social stereotypes. The reality is that across society as a whole, senior female talent is not being recognised.

This means your practice may be losing out on valuable leadership and skills from female colleagues. If those staff exit your practice, that ultimately leads to lost revenue.

Essential issue: is your practice perpetuating discrimination?

In most work environments gone are the days of openly discriminatory conduct based on gender. However, practices can still inadvertently fall foul of discrimination law if they fail to adequately ensure that the ways in which the practice operates does not indirectly discriminate against female staff.

Examples include only paying overtime after the employee has worked in excess of 40 hours; something which would clearly impact part time workers, who statistically are more likely to be female. Instead, ensure overtime is paid when each individual has worked in excess of their contractual hours – which recognises the variance in part time working patterns.

Flexible working

All employees are able to apply to work flexibly, subject to length of service eligibility criteria. Under statute , only one application can be made per employee in any 12 month period.

Whilst employers are not required to automatically accept a flexible working application, there are limited grounds which can be stipulated as the reason for refusal.

Permissible reasons to refusal a flexible working request

• the burden of additional costs
• an inability to reorganise work amongst existing staff
• an inability to recruit additional staff
• a detrimental impact on quality
• a detrimental impact on performance
• detrimental effect on ability to meet customer demand
• insufficient work for the periods the employee proposes to work
• planned structural changes to the business.

The obligation upon employers is for meaningful consideration to be given to the application, which should detail the employee’s reasoning for how the new working pattern would operate for the practice in practical terms. In practical terms, that necessitates consideration to how the requested pattern could work. Before turning down an application, employers are permitted to suggest an alternative to the requested pattern if it was felt that a different working pattern can be identified that works for the employee and the practice.

Practice rotas, evening and weekend working can lend themselves to flexible working patterns. To disregard an application without considering in more depth how this could benefit the practice could mean that your practice is blinkered to more “traditional” working patterns, resulting in valuable female talent being attracted to other practices – who may be your competitors.

For those female employees you have invested in recruiting and training, in terms of both direct financial training costs and management time, permitting them to leave your practice to work flexibly elsewhere – or set up their own practice – is a wasted investment. Many corporate veterinary practices will have tried and tested experience of flexible working practices. Can your practice sustain loosing practice staff to competitors? This may be a particular concern if you have experienced difficulties in recruiting practice staff and the impact of losing skills would have a significant impact on the practice.

Sabbaticals

In recent months, I have seen an increase in veterinary practices looking to introduce the ability to apply for sabbaticals, particularly amongst more senior staff members, often with a recurring option to take a sabbatical every 3 – 5 years.

The ability to take or apply for a sabbatical is not a legal entitlement. If offered, it forms part of an employee’s contractual terms and conditions of employment and/or commonly also features in a partnership or shareholders agreement.

For all staff a period of sabbatical is an attractive option. It can enable an extended holiday, or working/ studying oversees. It can also assist in times of a family emergency, for example care of a seriously ill family member. However, if offered, the practice should be careful to avoid any inadvertently discriminatory decisions in the granting of a sabbatical.

If you decide to apply criteria for the granting of the sabbatical, think carefully as to why they are needed and how they should operate in a fair and non-discriminatory manner. For example, allowing a male vet to spend two months studying overseas but turning down a request from a female vet to cover school holidays would likely be deemed as indirectly discriminatory (on the basis that statistically female workers are more likely to be a primary carer for children).

Gender Pay and Equal Pay

With effect from 6 April 2017 , employers with a headcount of 250 or more employees must publish calculations every year showing how large their pay gap is between male and female employees. The calculations must be published on the employer’s website and a government website.

The purpose of gender pay gap reporting is not to “name and shame” employers with large gender pay gaps. Its purpose is to enable employers to demonstrate the progress they are making to close the differences in gender pay.

The calculations include comparisons between mean and median averages of pay and bonuses. They provide an “overall” pay gap across the organisation, and comparisons between make and female employees in 4 quartiles of the pay structure.

There is the opportunity to provide a narrative to accompany the bare statistics, for example to explain the steps being taken to tackle gender pay differences by the organisation.

Whilst the reporting requirements only apply to large employers – and measures to stage the introduction to smaller employers is yet to be announced – the impact of gender pay gap reporting will be felt by smaller employers.

Large corporates who can demonstrate a closing gender pay gap will undoubtedly attract more female staff, particularly if they have devised talent management schemes for female employees to climb the career ladder. For your female staff who perceive they have been “parked” at a midway between practice management or partnership and junior veterinary roles, a clearer career path is attractive. The “traditional” end goal of achieving partnership may not be the aim for everyone.

Female “buying power” can speak volumes. If the majority of your customers and clinic users are female, they may decide to vote with their feet by taking their business to a competitor who can demonstrate their commitment to recognising female talent, and reflects their own personal values in narrowing the gender pay gap.

In response to this threat, you could decide to voluntarily publish your own gender pay gap figures and devise career pathways for all staff roles, giving clear consideration to female talent management.

Importantly gender pay gap reporting is different from equal pay. Equal pay litigation concerns the differences in pay between roles of the same, similar or equivalent grade or whose work is considered to be equal, where the role being used as a comparison is performed by an employee of a different gender. It is unlawful to pay differently due to gender.

Whilst gender pay gap reporting may lead to an increase in equal pay claims – by virtue of a general increase in awareness of gender pay differences, it is in itself not ammunition to bring a claim as the statistics are not the direct comparison of the same job role.

If your practice is concerned about discriminatory pay differentials between male and female employees, it is important to take legally privileged advice to assess the issue, including calculations, in order to avoid the advice and calculations being disclosable under a data protection subject access request from an employee or in subsequent litigation.

Key considerations for employers of female staff

• Are there any provisions, criterions or practices in place that could be discriminatory? If so, consider how they can be altered.
• Do you have a robust and consistent system in place for assessing flexible working, sabbatical or leave requests? If not, develop criteria and apply them to all future applications. Don’t forget to assess how previous requests have been addressed.
• Evaluate your gender make-up across the practice and at different levels. Are you losing key female talent at a particular stage? What could you do to prevent this? How are your competitors addressing this problem?
• Consider whether to develop career pathways, including how and when partnership is offered.
• Consider whether to collate (and publish) gender pay gap reporting figures.
• Assess whether your practice is exposed to the risk of equal pay litigation.

If you would like further information about the HR and employment law issues surrounding flexible working or gender pay matters, please contact Stephenie Malone (Senior Associate Solicitor – Healthcare and Veterinary Specialist) at Harrison Clark Rickerbys solicitors.

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About the Author
Stephenie Malone, Senior Associate Solicitor
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