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Equal Pay for Men and Women (Definition of Pay (What is pay and what is a…
Equal Pay for Men and Women
Introduction
Article 157 TFEU
Provides that if men and women do the same work then they should be paid at the same rate
Allonby v Accrington and Rossendale College
ECJ adopted a wide meaning of worker so as to preventMS from reclassifying persons as self-employed so as to avoid obligations under A157
Definition of Pay
The Court of Justice adopted a wide definition of pay
Includes maternity leave pay
Travel allowance
Redundancy
Article 3 Recast Directive:
'The ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his/her employment from his/her employer'
What is pay and what is a social security payment?
Pension paid to all citizens by the State is a social security payment and is not covered under A157 or the Recast Directive
Private pension paid by an employer is pay
Hybrid pension, part state funded and part employer?
Defrenne I
ECJ ruled that such a scheme in this case did not constitue pay
Barber v Guardian Royal Exchange Assurance Group
In certain circumstnaces an occupational pension could constitute pay
Employee, made redundant, had to wait until 55 in order to be entitled to an immediate pension
Relevant age for woman was 50
Scheme fully funded by employer but participants waived their right to state pension
Court reaffirmed 157- only applied to pay and social security did not constitute pay
but here examined
who
paid for the scheme
Concluded that despite the fact that the scheme was a substitute for social security, it was entirely funded by the employer and employee and thus part of employee's pay
Definition of Discrimination
A157: Equal pay without discrimination based on sex means:
a) that pay for the same work at piece rates shall be calculated on basis of same unit of measurement
b) that pay for work at time rates shall be the same for the same job
Direct Discrimination
Recast Directive: 'where one person is treated less favorably on grounds of sex than another is, has been or would be treated in a comparable situation'
Test
But for test- but for the fact of their sex the employer would not have discriminated against them
no need to shown an intention on part of employer to discriminate- motivation irrelevant
Not possible to justify direct discrimination
Difficult for worker to prove direct discrimination on occasion
Danfoss
FACTS:Employer paid same basic wage to all employees in same wage group but also awarded individual bonuses on basis of mobility, training and seniority
ISSUE: two female employees, different wage groups, complained of direct discrimination as the average wage for men in both groups higher than those of women
HELD: ECJ ruled that individual bonuses were calculated in such a way so as to make it impossible for women to know how they were calculated
Put burden of proof on the employer to justify the payments as there was no transparency in how they were regulated
Indirect Discrimination
Recast Directive: 'where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary
Seemingly neutral provision or measure has a discriminatory effect on a substantially higher proportion of one sex, unless the measure can be objectively
justified
Enderby
Speech therapist, argued that as ti was a profession dominated by women it should be comapred with pharmacists, a profession dominated by men, who do similar work
Where examination of significant statistics discloses an appreciable difference in pay between two jobs of equal value, one carried out almost exclusively by women and other by men-
employer must show the difference is based on objectively justified factors unrelated to any discrimination on grounds of sex
Justifications for Discrimination
Justifications
only for indirect discrimination
in order to successfully argue objective justification the employer must prove there is a legitimate aim
necessary and appropriate
Enderby:
Employer offered two justifications
There were separate bargaining prcesses for the two groups
could never be valid justification
Needed to pay higher rates to certain groups to attract candidates
Possible justification
Danfoss
Employer sought to justify differences in pay on basis of training and length of service
HELD: Valid grounds for paying people differently but that employer had to be careful to give women equal access to training
Re length of service- women had enered workforce more recently
Concluded lngth of service went hand in hand with experience and therefore valid justification for different rates of pay
JP Jenkins v Kingsgate ltd
FACTS: pre 1975 men and women not paid same amount, but rate for part time and full time pay the same
post 1975 rate of pay for men and women same, part time workers paid less than full time workers
HELD: Differences in pay prescribed by provisions must differences based on sex of employee
Therefore, diffference in pay for part time workers would not be prohibited so long as such differences can be objectively justified and are not discriminating on grounds of sex
on ther hand, if a considerably smaller percentage of women are in full time employment,
and employer cannot expain difference in pay on grounds other than sex discrimination, disparity in pay will be found to contravene the provision
For national courts, on case by case basis, to decide whether facts amounted to sex discrimination based on 'facts of the case, history and employers intention
BF Cadman v Health and Safety Authority
Employee of HSA for a number of years
used 4 male comparators in same grade as herself who were being paid more
accepted they had longer service
ISSUE: Court unable to determine whether the Court of Justice had moved away from position in Danfoss that 'the employer does not ahve to provide special justification for recourse to the criterion of of length of service
HELD: where evidence of discrimination burden rests with the employer to show that it is objectively justified and it represents a legitimate aim
Difference in pay based on length of service is generally acceptable, as length of service indiccaes experience and rewarding experience is objectively justified aim
HOWEVER- not case in every situation
if complainant can raise 'serious doubts' as to whether the use of length of service as a criterion for increased wages serves a legitimate aim, then the burden shift to employer to prove that it does