Reflexive regulation versus substantive regulation: the role of responsive law in gender pay inequality

The gender pay gap has been highly topical for the past few decades, stemming from the enactment of the Equal Pay Act 1970 which not only acknowledged its existence but also sought to remedy what appeared to be an all-pervasive issue. It relates to the differences in the wages earned by women and men. According to the Office for National Statistics, in 2025 the gap in hourly earnings for full-time workers was 6.9%. This is in stark contrast to all part time employees, where the gap is negative 2.9% in April 2025. It would appear that women in part time work are earning more than men in part time jobs. This in itself does not necessarily represent a victory as, only 14 percent of men work part time compared to 36 percent of women other factors. While about 85 percent of men are in full time work compare to 61 percent of women. This demonstrates that despite almost 50 years of equal pay legislation and case law, the gender pay gap still very much persists and it is important to ask why this is. This is not only a domestic issue but also relevant in Europe and beyond. Through European Directives and Regulations, the landscape in which employers in the United Kingdom (UK) have operated has changed to address the differences in pay and the causes for this.

Whilst there are arguments over how the gap should be measured, its existence alone should be a cause of concern. It reflects issues surrounding economic ideologies, policy formation, legislation and the regulation of labour as a whole.

The causes for the gap go deeper than the superficial Aristotelian view of treating ‘like for like’ that is reflected in legislation. The elimination of the gender pay gap has been hindered by the continuous arguments between the ‘business case’ in favour of employers and legislation protecting workers’ rights, with the former prevailing. This thesis assesses the regulatory developments in the UK to address the gender pay gap and compares approaches and developments between, Australia and the UK to establish where and how the law has failed in its formal application and regulation of pay.

Questions of how this problem can be addressed in the wake of formal equality’s failure have led to the emergence of ‘responsive law’. Responsive law emerges when legal formalism fails and can take many forms. In pay equity, the state can either introduce substantive or reflexive regulation. This thesis discusses these regulatory approaches and assesses the advantages and disadvantages of each.

It also examines the reasons for its existence and persistence by analysing the economic theory and ideology that informs policy which in turn informs legislation. It will also employ feminist theory and perspectives in order to offer a different perspective to the existing problem. A true reflective analysis of the gender pay gap cannot be accurately conducted in the absence of engaging all the causal elements of the gender pay gap.