Discrimination in Employment
Discrimination in Employment
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Equal Pay
Equal Pay Act passed in 1970. This implemented the European principle of Equal pay contained in Treaty of Rome Article 119 (now 141) and sets out a broad definition of pay.
Although the EPA is limited in application in that the comparison is between a man and a woman presently employed by the same employer, Article 119 of the Treaty of Rome which requires 'equal pay for identical work' between the sexes confers a similar right to every worker in the Common Market.
* Equality clause - By virtue of s1 (1) the equality clause is an implied term in every contract of employment.
If Sharon is successful in her claim for equal pay, the equality clause will be activated. This means that any term less favourable in her contract than that of the comparators becomes as favourable and any term not included in her contract that is Phil's contract will be included. The effect is that Sharon's pay will rise and she will have the same perk as Phil of the company car.
It is important to note here that the Act requires a term-by-term comparison between the applicant and the comparator's contract of employment. This issue came up in the case of Hayward v. Cammell Laird Shipbuilders [1988]. Miss Hayward won her claim, but question arose as to what she was entitled to. She claimed the same rate of basic pay as her chosen comparator as a term of contract under the equality clause, but her employers objected to this pointing out that though her basic pay was less; other terms in her contract were actually more favourable than her comparators, such as sick pay and more holiday benefits. Thus, if the contract was looked at as a whole package, Miss Hayward would fail in her claim for a pay rise, but if it was considered on a term-by-term basis she could succeed in her claim. The Court of Appeal opted for the package approach, but the House of Lords held that by way of s1 (2) the contracts should be examined term-by-term.
* Male comparator
The EPA is based on comparison with a named comparator. The applicant is free to choose her male comparator as in Ainsworth v. Glass Tubes and components Ltd [1977], but it may not be a hypothetical male (Defrenne v. SABENA [1976]). It was established by the European Court in McCarthy v. Smith [1981] that the applicant could compare herself with a predecessor under Article 119.
Under s1 (6) the applicant's male comparator must be:
(a) Employed by her employer or an associated employer and;
(b) Employed at the same establishment or;
(c) Employed at a different establishment in Great Britain and common terms and conditions are observed for that class of employee.
Phil is a valid male comparator for Sharon as they are both shift managers employed by the same work.
* Sharon's route to equal pay claim
There are three ways to claim equal pay: like work, work rated equivalent and work of equal value.
The route of equal pay that Sharon should claim under is 'like work', defined in s1 (4) as work 'of the same or a broadly similar nature'. There are three areas the tribunal will look at when considering a claim under like work: hours, duties and responsibilities. This was established in the case of Capper Pass v. Lawton [1977]. Here, a female cook who prepared 10 to 20 lunches for ...
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* Sharon's route to equal pay claim
There are three ways to claim equal pay: like work, work rated equivalent and work of equal value.
The route of equal pay that Sharon should claim under is 'like work', defined in s1 (4) as work 'of the same or a broadly similar nature'. There are three areas the tribunal will look at when considering a claim under like work: hours, duties and responsibilities. This was established in the case of Capper Pass v. Lawton [1977]. Here, a female cook who prepared 10 to 20 lunches for directors was held to be employed on like work with two male assistant chefs who helped to provide many more meals at more times of the day in the canteen. This was because there was a generally similar type of work involved, with similar skill and knowledge involved. The crucial point is that the basic processes were the same. In Eaton Ltd. V. Nutall [1977] a woman handling goods worth less than £2.50 was held not to be on like work with a man handling between £5 and £1 000 as a mistake on the part of the man would be of greater consequence. Therefore, it can be construed from this that if a man has greater responsibilities than a woman doing broadly similar work, this will be a difference of practical importance thus justifying a difference in pay. Sharon and Phil are both managers and thus share the same responsibility.
* Defence available to the employer, Victoria Fashions
It is a defence to an employer to show that the variation between the man's and the woman's contract is genuinely due to a difference other than sex. The 'material difference' in a 'material factor' defence must be 'significant and relevant' and 'reasonably necessary' (Rainey v. Greater Glasgow Health Board [1987]). In that decision the House of Lords found that an employer must show that the ground on which he relies 'may be regarded as objectively justified on economic grounds'. An employer has to be able to show that the decision was not only untainted by any sexual bias, but also objectively justifiable on economic or other reasonable non-sexual grounds.
Market forces. The decision of the House of Lords in Rainey established that 'market forces' are a legitimate 'material difference' defence. That case involved the employers paying a new female recruit less than existing male members of staff, who were recruited at a higher grade when setting up the service, in circumstances where it would otherwise have been impossible to recruit new staff. The employers established that it was their intention to recruit all new staff on to the lower grade, and thus the defence would succeed in that case. The danger of the 'market forces' argument is that the 'market forces' are, historically, discriminatory against women. A 'market forces' defence that argues that the employer is paying the going rate for the job is unlikely to succeed, as it will fail the requirement of s1 (3), which requires the 'material factor' is not the 'difference in sex'.
In addition, the 'market forces' argument must be material at the time. If the market forces that lead to the differentials have disappeared, then the defence will not succeed (Benveniste v. University of Southampton [1989]). A university lecturer was appointed at a time of severe financial constraints and, as a result, she agreed to accept a salary which was below that which she would normally have received, having regard to her age and qualifications. The financial constraints were lifted approximately a year later, but the University refused to regrade her. The Court of Appeal rejected the University's 'material factor' defence, based on the economic circumstances pertaining at the time of her appointment , on the grounds that after the financial constraints had been removed, there was no longer a material difference between her and her comparators engaged on like work. The case shows that the concept of material difference is not a static one, and that a difference which was initially justified may cease to be once the justification is removed as no longer current.
Ratcliffe was held to be tainted with sex discrimination even though it was genuine material factor defence as those employed in this area of the market were predominantly women.
Race Relations Act 1976 and the Sex Discrimination Act 1975 both prohibit:
Direct Discrimination: Where a person of one sex or racial group is treated 'less favourably' than a person of the opposite sex or a different racial group.
Indirect Discrimination: Where a condition or requirement imposed on members of either sex or all racial groups has a disproportionate adverse effect on one group.
Burden of proof is on person alleging discrimination.
Religious Discrimination
Victoria fashions have imposed a requirement across the board that employees must work alternate Saturdays. This is indirectly discriminatory against Jews, who have a religious day on Saturdays.
RRA s3 defines 'racial grounds' and 'racial group'.
The Race Relations Act does not cover religion but a particular religion may themselves form a racial group within the meaning of the Act. Thus it is necessary to distinguish whether the Jews are classed as a racial group. In Seide v. Gillette Industries [1980] the EAT held that the word Jewish can mean membership of a race/ethnic group as well as religion.
An ethnic group was defined by the House of Lords in Mandla v. Dowell Lee [1983] as having two essential characteristics:
* A long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive.
* A cultural tradition of its own, including family and social customs and manners often, but not necessarily, involved with religious observance.
For there to be indirect discrimination four conditions must be satisfied:
(a) Condition or requirement imposed across the board.
(b) The comparative group
(c) Justifiability. Third condition is that the requirement is not justifiable irrespective of sex/race. Steel v. Union of PO workers. P/t became f/t. EAT had to distinguish between a requirement which was necessary and one which was merely convenient for the employer.
(d) Detriment to the complainant. The complainant must suffer a detriment because he cannot comply with the condition/req imposed.
Saturday working is compulsory for all, but as this is a religious day for Jewish people it is unreasonable to expect them to be at work. As the House of Lords maintained in the Mandla case, it is theoretically possible for a Sikh boy to cut his hair and comply with the condition but he shouldn't have to. Likewise in this case, David could work Saturday but he shouldn't have to. If he complied with the Saturday working condition it would have detrimental consequences for him as he has been told by his employer to get his priorities right, and that if religion comes first to him then he can just leave. This is detrimental as the man is being asked to choose between his job and his faith, ultimately losing one or the other.
It is important to note however, that this case will turn on its facts. In Wetstein v. Misprestige Management services ltd. [1993] the EAT held that a requirement to work Friday evenings was not indirect racial discrimination, as the proportion of Jews who could comply with the requirement was found to be 90-95 per cent. Since this was not significantly different from the proportion of non-Jews who could comply, there was no indirect discrimination.
Nevertheless, it is suggested that employers should endeavour to be flexible about such matters and to accommodate their employees' religious observance whenever possible.
Sex Discrimination
Peggy is refusing employment to a single mother because she feels that she will be unreliable because of her child care commitments. Also, Peggy knows that one of her main customers has strong views on the benefit of a full-time mother and would be likely to withdraw their custom if Anita was employed.
SDA only covers discrimination against married persons; Anita will not be covered as she is a single person. However, she may be able to allege discrimination on the grounds of her sex if she can show that a man with children would be treated differently.
Direct discrimination involves two key elements:
* There must be less favourable treatment.
* The treatment must be because of sex or marital status.
Less favourable treatment involves some detriment to the person concerned.
The second aspect is that the treatment must be on the ground of sex. This does not mean that the employer intends to discriminate; motive is irrelevant. The fact that Peggy's customer will not like it and that is her reason is not relevant. The issue is that she is discriminating on the grounds of Anita's sex. In James v Eastleigh Borough Council [1990] a swimming pool allowed women over the age of 60 free admission, whereas men had to pay until they reached 65. This was based on the state pension age. The House of Lords held that this was unlawful sex discrimination. The nature of the Council's motive was irrelevant: the test for sex discrimination was whether the men would have been treated differently but for their sex.
In Hurley v. Mustoe [1981] a woman with three young children was refused the job because the employer believed that mothers were unreliable workers. This rule was only applied to women with young children, and therefore constituted direct discrimination: men with young children were not in practise excluded.
In all cases of direct discrimination, it is necessary to compare a person's treatment with that of someone of the opposite sex. The comparison can be hypothetical.
Barry's application to model ladies under-garments may not amount to sexual discrimination. It may be a genuine occupational qualification under s7 of the SDA.
Physiology or authenticity. The GOQ defence applies 'where the essential nature of the job calls for a man for reasons of physiology (excluding strength or stamina) or, in dramatic performances or other entertainment, for reasons of authenticity, so that the essential nature of the job would be materially different if carried out by a woman'. So it is lawful to insist that a model for women's clothes be female, or that a Tarzanogram performer be male. Physical strength and stamina are expressly excluded: employers may need people capable of lifting heavy weights for a particular job, but they cannot assume that only men will be able to do so.
Disability Discrimination
Under DDA s5 (1) an employer discriminates, if for a reason which relates to a person's disability, he treats that person less favourably than he would a person without a disability, and that discrimination is not justified.
