A taxi driver once asked me, having been told I was an employment lawyer, whether I represented “women who ask for a million pounds because someone made a remark about their tits”. Not only does this illustrate a common misperception of employment law, it is also relevant to the new, supposedly toothless, Gender Pay Gap Regulations.

First, very few claimants in the employment tribunals claim “a million pounds” – those that do are either already high earners (so the claim is proportionate to the loss) or are so ill that they will never work again. Secondly, whatever anyone might claim, no-one would be awarded a million in compensation for a comment about their breasts (maybe a few thousand).

Most women bringing a sex discrimination claim will not be able point to direct evidence that they were, say, made redundant because of their gender. Therefore, they look for indirect evidence to try to persuade the tribunal to make an inference that this was, indeed, the reason. Statistics are often helpful here:

  • How many women in the workforce?
  • How many in senior roles?
  • How many promoted?
  • How many made redundant?

Next, sexist comments might be prayed in aid (and this is where the taxi driver was misinformed) not necessarily because the woman wants compensation for the comments themselves but because they might cast a light on the attitude of the person who made the decision to terminate the claimant’s employment.

Finally, the claimant will try to undermine the employer’s official rationale for the dismissal. When all three come together (the statistics, a history of sexist comments and a questionable rationale) a claim without direct evidence can nevertheless become quite compelling.

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 require employers with at least 250 staff in the UK to publish annually the difference between the mean and median pay and bonuses for men and women across their workforce. There is, however, no legal sanction for failure to do so. Some naming and shaming is likely but, at present, no fines are on the agenda. This has, unsurprisingly, led to suggestions that these regulations are toothless.

But let us go back to our claimant seeking to persuade an employment tribunal that, in the recent round of redundancies, her sexist boss decided to keep his male drinking buddies and dismiss the working mother. She will, from April 2018, be able to draw the tribunal’s attention to the employer’s gender pay gap report. Obviously if the gender pay gap is worse than comparable employers, she would be able to exploit that – but what if there was no report at all?  Wouldn’t that be gold dust? “This company is so sexist it completely disregards the Regulations!”

Those Regulations might be toothless but there’s hidden venom. I advise publication.