Employment Law Essay

Employment Law: Employment Rights Essay
Semester II Assignment
Alan O’ Mahony – 09684905

Critically evaluate the effectiveness of the relevant provisions of the Employment Equality Acts 1998-2011 (and their predecessors) in eliminating pay discrimination on the ground of gender within the workplace and thus reducing the gender pay gap.
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Traditionally gender discrimination was rife and accepted in most aspects of society. These attitudes and tendencies have carried through hundreds of years and are still visible today. Many laws and legislations have been passed in recent years in order to combat the problematic situation involving employment equality. Personally I believe that everybody should be treated equally having the right to work and make a living. However from my research it has become clear that this is not easily achieved for a number of reasons which I will address later in this essay.
Discrimination can be defined as “the differential treatment of individuals or groups based on arbitrary or ascriptive criteria such as gender, race, religion, age, marital or parental status, disability, sexual orientation, political opinions, socio-economic background, trade union membership and activities” and so on. It occurs when one person is treated less favourably then another. In the past employers had the sole right to only employ those who they wished and to refuse employment to those on any ground which they suited. Employees had no right of action against employers. Lord Davey described the state of the law in the very early English case of Allen V Flood: “An employer may refuse to employ (a workman) from the most capricious, malicious or morally reprehensible motives that can be perceived but the workman has no right of action against him”.
Common law was explicitly discriminatory on the gender ground. In R V Crosthwaite the ruling debarred women from any public office. This law was present until 1919 when the Sex Disqualification (Removal) Act removed most of the legal restrictions on the appointment of women to public offices or professions but it did not do anything to aid them in attaining such appointments. It was highlighted in Price V Rhondda Urban District Council that the 1919 Act had removed all disqualifications based on gender; however it had conferred no rights to women. In this case, the court ruled in favour of the employer who dismissed 58 married women teachers, stating that the employer’s behaviour had not violated the Act. I wanted to find out why women have been discriminated against in employment circumstances for many years. Another example of the state of the law was the case of Roberts V Hopwood. Here, a labour dominated borough council had decided to equalise pay rates between its male and female employees. This controversial decision at the time was held to be so unreasonable, having regard to the council’s responsibilities as trustees of the rate payers’ money, as to be ultra vires. Historically, women have always been expected to carry out their family duties from the home. This has coincided with many other reasons such as religious views, family laws which force arranged marriages and the views of some people that certain jobs are for ‘men only’ or are more suited to men (the construction industry for example). In this essay I will thoroughly assess the Irish experience to eliminate pay and employment discrimination against females.
The stimulus for employment equality legislation in Ireland was joining the European Economic Community in 1973. Since its early beginnings, sex equality has been one of the most important pillars of the European Union’s social policy. Article 119 of the EC Treaty provided that “men and women receive equal pay for equal work”. This Article became the springboard for a much needed employment equality legislation in Ireland. Directive 75/117/EEC developed Article 119 further and both were given effect in Ireland by the Anti-Discrimination (Pay) Act 1974. In early 1976 the EU adopted Directive 76/207/EEC on equal treatment. It was stated in the Directive that “equal treatment for male and female workers constitutes one of the objectives of the Community”. Article 2(4) of the Directive states that “this Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Article 1(1)”. These areas included access to employment, including promotion and access to vocational training. I found this both interesting and confusing as the European Court of Justice went onto to state that the provision is “specifically and exclusively designed to allow measures which, although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequalities which may exist in the reality of social life”. Personally I think this is unclear and ambiguous. It is this sort of murky legislation which many critics believe is the problem why discrimination is still present in the workplace today.
The Employment Equality Act 1977 was enacted in Ireland on foot of this Directive. The Act was to coincide and expand the previous legislation. The Act prohibits three types of conduct on the part of employers: a) Direct discrimination; b) Indirect discrimination; c) Victimisation.
Prior to the introduction of this legislation there had clearly been discriminatory wages paid to women as men were considered the source of income for a family. Overall it was enacted into Irish law in order to ‘beef up’ the current legislation which was not having the desired effect of closing the gender pay gap. These new legislations became the cornerstone in Ireland to try and eradicate inequality in the workplace and although Ireland has introduced several pieces of legislation since then, which seek to ensure equal treatment between men and women, it can be seen that significant inequality remains in practice.
One of the most important cases in this area of law is that of Defrenne V Sabenna. It was a landmark case which established that Article 119 had direct effect against both public and private employers. The claimant was a stewardess for the defendant company (Sabena) who had brought an action before the Tribunal in Brussels for compensation for the loss she incurred in terms of salary, allowance on the termination of her contract and her pension in comparison with the men in the company doing identical work. The case was referred to the ECJ where they ruled that Article 119 was crystal clear and unconditional to be directly effective but also that it conferred a right to equal pay enforceable against private as well as public employers. The Court also highlighted the fact that European legislation and its aims were both for economic and social functions. They wanted to emphasize the fact that the Community was “not merely an economic union, but at the same time intended, by common action, to ensure social progress and seek constant improvement of the living and working conditions”.
The judgement in Enderby V Frenchay Health Authority broadened the scope of equality in many ways but also ensured that a genuine market forces defence would prevail over equality. The judgement went on to pass the onus of proof onto the employer when it came to dealing with equal pay claims. This decision in effect promotes the undertaking of equal pay claims which is hugely needed as the actual numbers of cases taken against employers is very low because of the difficulty in making a successful claim. The courts need to be extremely careful when making judgements on this topic to make sure, what looks like an objectively justified factor, does not in reality have its roots in sex discrimination.
However many critics will defend the fact that the EEC was created purely for economic reasons. Its principle aim was to form one single common market for the trading of products and services. Because of this there has always been a danger that market forces will be easily permitted to justify unequal pay. Since the creation of the EEC, the principle of sex equality and right to equal pay for equal work was constricted by the underlying force of the free market philosophy of the EU. From the outset anyone can clearly see that these two policies were bound to clash because there is always going to be friction between employment equality and market considerations. Complete domination of market forces would marginalise women and workers generally while total power of equality would be detrimental to the EU in an economic respect. What chance do Member States have if the very root of the problem lies deep within the original EU legislation which they must abide? It is a very complex area of law and it becomes apparent as you go through history that there is no easy solution to this problem.
Employment Equality Act 1998
The Employment Equality Act 1998 came into operation in Ireland in October 1999. The Act outlaws discrimination on seven new grounds, in addition to gender and marital status. There are now nine distinct grounds upon which discrimination is outlawed, they are: gender, civil status, family status, age, race, religion, disability, sexual orientation and membership of the Traveller Community. Like the previous legislation the Act deals with work related activities such as vocational training, access to employment and pay and conditions of employment. Since 1998 the Act has been amended numerous times including the Equal Status Act 2000 and Equality Act 2004 and more recently the Civil Law (Miscellaneous Provisions) Acts 2008 and 2011. It is now known as the Employment Equality Acts 1998-2011 and is the most comprehensive piece of legislation which Ireland has produced on employment law. The new provisions provide Ireland with one of the most far-reaching equality laws in Europe. However the promoting of equality in Ireland has also been heavily influenced by other social, political and economic factors. Organisations such as the ‘Commission of the Status of Women’ were established who also push and lobby the government for equal opportunities for women in all aspects of life.
In spite of the expansion of the Act and that of who and what it covers it also includes a certain limitation for claimants which I feel has hindered its effectiveness for a number of reasons. The concept of ‘like work’ is defined by section 7 of the 1998 Act in the exact same way in which it was defined in section 3 of the 1974 Act with the inclusion of situations where the work of the complainant is superior in value to that of the comparator. In Murphy V Bord Telecom Eireann the ECJ incorporated this principle. The claimants were women who worked for Bord Telecom Eireann who were using male comparators from the same company. The ECJ held that a woman doing work of more or greater value than a man but being paid less than him may claim equal pay. If they were to adopt a contrary interpretation it would have ruled the principle of equal pay ‘ineffective and nugatory’.
The major problem with regard to the enforcement of equal pay is still the difficulty in obtaining a comparator. The definition does not include the concept of a ‘hypothetical comparator’. A complainant must be able to point to “an actual concrete real life comparator of the opposite sex”. This is obviously a big difficulty for claimants and this reflects why there has been so few successful equal pay claims made in Ireland. The Court of Justice highlighted that the principle of equal pay is limited to situations in which men and women work within the “same establishment or service”, this was stated by Budd J. in Brides V Minister for Agriculture. However in the more recent cases of Lawrence V Regent Office Care Ltd and Allonby V Accrington and Rossendale College the “single source” principle was established. Here the ECJ found nothing in the wording of Article 141(1) to suggest that the application of that provision was limited to situations where men and women work for the same employer. Nonetheless it was held in North Cumbria Acute Hospitals NHS Trust V Potter that the “single source” principle will only apply when the complainant and the comparator are in different employment. As you can see, all these provisions although well put together still do not encourage women to make equal pay claims because of the difficulty in succeeding under these laws.
Section 24(1) of the 1998 Act states that the provisions of the Act are without prejudice to any measures “maintained or adopted with a view to ensuring full equality in practice between men and women in their employment” and any measures “providing for specific advantages so as; (a) To make it easier for an under-represented sex to pursue a vocational activity or (b) To prevent or compensate for disadvantages in professional careers”.
Examples of positive action may include childcare assistance or the provision of leave for family reasons. The Equality Employment Authority is always trying to push employers to use forms of positive action. Schemes such as ‘Equality Focus’ were set up to primarily focus on these aims. There are awards given each year to employers who they feel have been making an effort to combat gender discrimination in the workplace which are the first of their kind in Europe.
There have been considerable statutory and non-statutory measures which have been introduced in Ireland over recent years which have had an impact on the effort to reduce the gender pay gap. These include statutory prohibition on pay discrimination, standardisation of wages and various statutory and non-statutory measures aimed at supporting the continuity of employment. Even with these measures Ireland still has a considerable pay gap between male and female workers. There are many statistics to show how the gender pay gap among other aspects of employment has been affected by legislation. To evaluate the effectiveness on equality legislation on female pay, it is desirable to compare the female-male pay gap before and after the implementation. Unfortunately the Central Statistics Office (CSO) can only provide relatively recent data from which we can base our opinions on. The ‘Measuring Irelands Progress 2008’ report which was published in 2009 set the pay gap between males and females at 17%. Also the ‘National Employment Survey’ which was published in 2007 showed that the average hourly pay for men was €21.17 as opposed to €18.91 for women. It also stated that men earned more than women in all sectors of employment. Public administration and the defence sectors showed the smallest difference in pay levels.
The National Employment Survey 2003, published in 2009, claimed that the pay gap in Ireland between men and women was 22%. Two-thirds of that gap could be attributed to observable characteristics in education, family responsibilities and labour market experience. It was interesting to see that the study showed that part-time female workers in certain sectors were earning more than their male counterparts. Married men, irrespective of the sector in which they worked were shown to have higher earnings overall as they were less likely to have spent time out of the labour market. This is a fact which I feel will never be overcome as long as females wish to have children and start their own families. For example, if a male and a female both of middle age with equivalent education and experience are both going for the same post and the employer feels they would be both equally capable of carrying out the duties of the job it is understandable to see why the majority of employers would choose the male. An employer is always going to be wary of a woman becoming pregnant at that stage in her life, which is completely normal. This is the stark reality of the matter and although I am fully in favour of complete equality in the workplace I feel that this is the main reason which will harness women’s ability to banish the gender pay gap.
In conclusion, the general application of employment law and non-statutory instruments can be seen to have significantly improved the terms and conditions of employment in Ireland. Nonetheless there is no hard evidence that can be identified regarding the impact of such techniques on the gender wage gap; such measures must be seen as enhancing the remuneration of female workers. Also the unavailability of a ‘hypothetical comparator’ has been a significant hurdle for which claimants must overcome in order to make a successful claim under the Employment Equality Acts. With over thirty years of promoting equality of pay and opportunities in this country and the establishment of a comprehensive policy framework to abolish discrimination in the workplace, the gender wage gap still exists today. Although it has narrowly slowed it will forever be a fighting battle for women who are underrepresented at many levels within the working environment.

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[ 1 ]. Anti-Discrimination (Pay) Act 1974
[ 2 ]. (1898) AC1, 172-173
[ 3 ]. (1867) 17 ICLR 463, 479
[ 4 ]. [1923] 2 Ch 372
[ 5 ]. [1925] AC 578
[ 6 ]. Anthony Kerr, Employment Equality Paper, www.ucd.ie
[ 7 ]. Principles of Irish Employment Law, Doherty and Daly
[ 8 ]. Employment Law, Maeve Regan
[ 9 ]. Equality and Market Considerations, Patrick Lloyd
[ 10 ]. Irish Employment Equality (1989), Curtin
[ 11 ]. Case 149/77 (1978) ECR 1365
[ 12 ]. Equality Legislation in the Republic of Ireland, (Cassidy, Strobl, Thornton)
[ 13 ]. (1993) ECR I-5535
[ 14 ]. [1988] ECR 673
[ 15 ]. The Gender Pay Gap in Ireland, Legal Review, Meenan and Garvey
[ 16 ]. [1998] 4 IR 250, 270
[ 17 ]. [2002] ECR 1-7325
[ 18 ]. [2004] ECR 1-873
[ 19 ]. Marginalising Equal Pay Laws, Fredman
[ 20 ]. [2009] IRLR 176
[ 21 ]. Caruso, Positive Action in the EU after the New Equality Directives 2003
[ 22 ]. The Gender Pay Gap in Ireland, Legal Review, Meenan and Garvey
[ 23 ]. Marginalising Equal Pay Laws (2004) ILJ 281