Gender Equality
European Union law took precedence over conflicting domestic law. Accordingly, both the substantial content of the European Union Directives in the areas of equality, both in content and in the manner in which they are interpreted by the Court of Justice and other European Courts, will override domestic laws. This has been retained as UK law after Brexit.
The principle of equal pay for men and women for equal work is enshrined in the standing treaties of the European Union. The Equal Pay Directive was one of the first European Union directives and required equal pay for the same work or work of equal value and required the limitation of all discrimination on grounds of sex, as regards all aspects of conditions of employment. In particular, job classification systems used for determining pay must be based on the same criteria for men and women and drawn up to exclude discrimination on the grounds of sex. The Equal Treatment Directive provided for equality in relation to access to employment, vocational training, promotion, and employment conditions generally. Further directives have covered areas of Social Security, occupational pension schemes, protection for self-employment, and maternity and motherhood protection.
The Equal Pay Act (NI) 1970 as amended by the Sex Discrimination (NI) Order, 1976 deals with equal pay and gender-based discrimination. The legislation covers equal pay for like work and equal pay for work of equal value.
When an application is made to the Tribunal, initial consideration is given as to whether it is reasonable to compare the applicant’s job with the comparator’s job. They must generally work in the same place for the same employer or in a different place for the same employer under the same terms and conditions.
The fact that they are persons of the same gender being paid the same for the same work does not preclude an equal value claim. It may assist the employer in showing that there is a genuine material factor and not based on gender, marking the distinction.
Employers use an analytic scheme to compare jobs in terms of skill, effort, responsibility, and decision-making. If an employer has used an appropriate scheme, this will make it difficult to challenge unless the scheme is in itself discriminatory or insufficient by its terms.
Persons employed in a single sector or under a framework agreement may be compared, notwithstanding they are employed by different employers. Accordingly, in teaching, there is a single framework governing many schools, although employers may be various boards by the CCMS.
Once a Tribunal is satisfied on the initial stage that the comparator claim is reasonable, it refers to matters of an independent expert who prepares a report on whether jobs are of equal value. They are a panel of independent experts appointed by the Labour Relations Agency.
The Tribunal considers the independent expert’s report and may admit it as evidence if the facts on which it is based are accepted. It may have a separate second expert to prepare a report if it is unsatisfied to accept the report.
The Tribunal may accept or reject the findings, and the parties may call their own experts to review the report.
It is a defence if the employer can show that there is a genuine material difference between the comparator case and the applicant’s case.
Once the applicant has established a prima facie case that there has been discrimination based on sex or gender, the onus is on the employer to rebut this. If the difference is not based on sex, the case fails, and there is no obligation to justify the difference.
Statistics tend to suggest that the difference in pay is referable to sex discrimination. European Union case law requires the employer to justify the different treatment on objective factors related to sex. It is insufficient, in European Court of Justice cases, to explain the difference on a historical basis or collective bargaining structures. If there is no genuinely material factor present, there is an implied condition of the contract that the applicant and comparator are entitled to equal pay.
UK national law provides for two years back pay. However, the European Court of Justice holds this compensation insufficient.
The Sex Discrimination (NI) Order 1976 provides for equal treatment of men and women in the areas of education, employment, and provision of goods, facilities, and services to the public.
Direct discrimination involves treating an individual less favourably than someone of the opposite sex or different marital status. The employer or other party may defend this on the basis that the differential treatment is unrelated to sex.
The legislation places an additional burden of proof to comply with EU requirements. Tribunals and Courts are obliged to draw inferences of sex discrimination in the absence of a clear and specific explanation in the area of employment but not in other areas.
Indirect sex discrimination arises if an employer applies a provision, criteria, or practice to a woman that is equally applied to men but is to the detriment of a considerably larger portion of women and men. It cannot be shown to be justifiable irrespective of the sex of the person to whom it is applied, or it breaches a woman’s detriment.
The legislation makes it unlawful for bodies responsible for education to discriminate between boys and girls. There are exemptions for single-sex schools.
Goods, facilities, and services must be made available to men and women in the same manner and on the same terms. The provision applies to market-based activities. It is not applicable to governmental activities and social activities in private clubs, but the scope of what constitutes a private club may be narrow.
The following are examples of facilities and services in relation to which discrimination is banned on sex grounds: access to and use of any place in which the members of the public or a section of the public are permitted to enter; accommodation in a hotel, boarding house, or establishment; facilities by way of banking, insurance, grants, or loans; facilities for entertainment, recreation, and refreshment; facilities for transport or travel; facilities for education; services of any profession or trade.
Employers may provide preferential treatment in connection with pregnancy and maternity. The comparison is with an equivalent sick man. Accordingly, if sick pay is paid, maternity allowance should be no less favourable. A Tribunal may declare that the employer has unlawfully discriminated against the applicant. It can recommend mitigation of the effect of their discrimination and award unlimited compensation.
It is discrimination against married persons and civil partners in employment applies where a provision, criteria, or practice which should apply equally to an unmarried person or a person in a civil partnership puts that person at a particular disadvantage compared to an unmarried person or a person not in a civil partnership, or which puts that person at a disadvantage and cannot be shown to be a proportionate means of achieving a legitimate aim.
Specific provision was made in relation to discrimination on the grounds of pregnancy in 2008. A person discriminates against a woman if, during the protected period on the grounds of pregnancy, she is treated less favourably or on the grounds that the woman is exercising or seeking to exercise a statutory right of maternity leave, the person is treated less favourably. The protected period commences with pregnancy.
Where a person discriminates against a woman on the grounds of pregnancy or within 26 weeks after birth, in the provision of goods, facilities, and services because he thinks that providing them would, because of pregnancy, create a risk for health or safety or the person offers to provide them on conditions intended to remove such risk because he thinks the provision of them without the conditions would create a risk. The discrimination is unlawful unless it is reasonable for the person to think as above, and the person applies an equivalent policy to others because of physical conditions or persons with other physical conditions.