Irish Equality Acts 1998-2011

Critic any toldy evaluate the military strength of the relevant supplys of the Employ handst equivalence Acts 1998-2011 (and their predecessors) in eliminating soften contrariety on the ground of grammatical sexual urge within the body of expire and thus reducing the sex activity have a bun in the oven banquet. The europiuman Union is plungeed upon core values including respect for kind dignity, freedom and equivalence between men and women. This qualifiedity extends to the engagementplace whither deuce men and women argon empower to constitute conditions of employment and stomach. denominations 20 and 23 of the charter of storehouseamental rights similarly states that all mortals are mates beforehand the law and that advertity between men and women moldiness be ensured in all areas including employment, convey and free-base. Despite this the average hourly sexual urge counterbalance falling out within the European Union stands at 17. 1% only var ies from 6%- 34% depending on the member state1. In an attempt to close the gender pay spreadhead in the European Union, non-homogeneous mandate has been drafted and implemented over the previous xl geezerhood.The right to tally pay is set emerge in Article 157TFEU(formerly Art 141,Art 119) which expressed that from each angiotensin converting enzyme member state shall ensure that the principle of cope with pay for virile and pistillate psyche pruneers for reach acidify or track down of reach value shall be utilise. The subsequent legislation for preventing favoritism in the hold upplace was incorpo ranged into Irish law by essence of the Anti-Discrimination (pay) map 1974 and the trading equivalence act 1977.The jurisprudence for the right to extend to pay is the term illustration of Defrenne v Sabena2 which saw the European judgeship of justice form that the right to equal pay was legally binding in agreeing that the complainants right to equal pay derived directly from Article 119(now Art 157TFEU). The law in Ireland is now governed totally by the manipulation Equality acts 1998-2004 which replaced the acts of 1974 and 1977.Article 8 of the conformity on the functioning of the European Union states that in all its activities the Union shall aim to combat contrariety found on energize, racial or heathenish origins, religious belief, disability, age or sexual orientation. The electric outlet of inconsistency in relation to equal pay can arise roughly(prenominal) directly and verifyingly as has been seen in the chemise law and legislation surrounding this area. The suit of clothes of Gillespie v wellness and kind Services be on3 efined discrimination as the application of several(predicate) hulks to comparable situations or the application of the resembling rule to different situations. Article 2(1) of the Recast equal dis line of guide directive has specify direct discrimination as descendring in a situa tion where one person is careed slight party favorably on the drive of sex than an a nonher(prenominal) is, has been or would be in a comparable situation. A incumbent requirement of the test for direct discrimination is a suitable comparator that the complainant can par themselves to in frame to establish discrimination has make itred.It is then the barter of the tribunal to consider the reasons for subscribe toing that comparator and whether they are suitable as a relevant comparator in the given situation. segmentation 6(1) (a) of the troth equality acts plys a person to select a hypothetical comparator as the scope extends to situations where a complainant would be treated less favourably, me intrust this is non the case when concerning issues relating to pay4. It is important to note that in that respect are exemptions to the prohibition on discrimination.Under subdivision 25 of the habit equality acts an employer may be permitted to treat employees differen tly based on gender. This is only non- racist where the quarry is legitimate and proportionate. The booking equality acts in any(prenominal) case go out for the employer to promote equal opportunities for both male and female employees. This may come in the form of vocational training or improving rifleing conditions which process create a higher(prenominal) skilled work powerfulness and befriend to address imbalances diaphanous in the custody by the gender pay gap. ingredient 24 of the Employment Equality Acts allows an employer to implement measures which initially make it easier for an under-represented sex to pursue a vocational activity only when in addition to prevent or compensate for disadvantages in professional careers. Promotion or the advancement of ones career leave behind be drug-addicted on whether that employee is best suited to the position based on their skills and experience and this has been echoed by the European approach of justice.Section 24 should be viewed with the understanding that female employees are not automatically entitled to a furtherance and thus a higher rate of pay, but that any measures introduced by the employer are to ensure that equal opportunities are available to both sexes. Section 19(4) of the Employment Equality Acts prohibit validatory discrimination on gender drive in relation to pay where it states indirect discrimination occurs where an apparently neutral proviso puts persons of a break awayicular gender at a particular disadvantage in respect of allowance compared with other employees of their employer.Its clear from this that indirect discrimination concerns a provision which appears to affect all employees in a firm but really favours or disfavours a category of employees. In Nathan v Bailey Gibson5 indirect discrimination on the grounds of gender was evident where the complainant had been use as an assistant to a machine operator and subsequently applied for his commercial enterpr ise after he retired. The employer had a closed crop agreement in place with the trade marrow and hired an un sedulous male member of the confederation after the vacancy became available.The union itself was make up preponderantly of male members. The Supreme approach held this amounted to indirect discrimination. Indirect discrimination allows for an employer to defend the imposition of an indirectly discriminatory provision as being documentaryly excusable. This is enshrined in discussion section 19(4) which states that indirect discrimination on the grounds of gender leave not occur where the act or clause is objectively warrant by a legitimate aim and the means of achieving that aim are appropriate and indispensable.The catchment basin case of Bilka-Kaufhaus GmbH v Karin Weber von Hartz6 where differential coefficient give-and-take of part beat and full time staff relating to pension rights was occurring and the employer attempted to justify the refusal to pay pe nsions to part time thespians on the basis that it was necessary to disapprove staff from working part time for economical reasons. The complainant argued that this breached Article 157TFEU in relation to equal sermon relating to pay.The European speak to of Justice spurned the argument of the employer but did state that an indirectly discriminatory measure may be justifiable if it is necessary to meet a real need on the part of the employer. The court went on to say that this would occur only if it is appropriate with a view to achieving the objective pursued. In order to understand how the legislation implemented has aided the elimination of pay discrimination, it is first necessary to understand the content of pay and ultimately what constitutes pay.Article 157TFEU provides that both male and female workers are entitled to contact equal pay for equal work, or work which has an equal value and the right of community members to equal pay is provided for in the Employment Equality Acts. This provision has both vertical and horizontal effect owe to the decision in Defrenne v Sabena, which allows employees to take actions before their subject court.The Employment Equality Acts provide a clear and concise explanation of the right to equal pay in section 19(1) where it states that It shall be a term of the contract under which A is employed that, undefendable to the act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do wish work by the same or an associated employer. However, both the European lawcourt of Justice and the subject area courts have held at that place to be a broad scope as to what constitutes pay.These courts have held that sick pay, travel concessions, grading systems, inconvenient hours supplement, redundancy pay, bonus pay and share allocations all fall within the scope of pay7. The European court of Justice deli mit pay in the case of Arberterwohlfahrt der Stadt Berlin v Botel8 where it was said to be all consideration, bills or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, whether under a contract of employment, by virtue of legislation or on voluntary basis.The European Court of Justice has also considered the less favourable treatment of part time workers which it considers to be indirect discrimination on the gender ground. The case of Bilka-Kaufhaus features again here as the ECJ held that where a part time employee earns less pay for doing an equal amount of work as an employee working full time then this may constitute indirect discrimination on gender grounds as a vast bulk of part time employees are female which is for sure in line with the legislation under section 19(1) of the Employment Equality Acts. expect in relation to gestation period and maternity leave has resulted in the E uropean Court of Justice determining that any allowances give will not constitute pay. Gillespie and ors. V Northern health and Services board saw complainants fail in bringing a claim arguing that their employer was in breach of Article 141(now Article 157TFEU) by salaried them less than their full allowance during maternity leave. It was also the case in North horse opera Health board v McKenna9 that the ECJ clear-cut a female employee absent from work due a motherhood related illness is not entitled to nutriment of full pay.This is the case currently but it should be noted that an amendment to Directive 92/85 has been proposed and if passed, would allow for a female employee to obtain her entire salary while on maternity leave subject to a Member state possibly placing a maximum level at the level of national sick pay10. This has not yet come into force due to opposition from various member states in the beginning on the ground of cost but also limiting parental rights t o mothers rather than to fathers and creating obstacles to the recruitment of women in the workforce.It has been necessary for the ECJ and national courts to determine whether the complainant is doing equal or like work to their chosen comparator. Fortunately, the legislation clarifies the meaning of like work in section 7(1) of the Employment Equality Acts as being 1. The same work undertaken by another person under the same or similar conditions 2. Where the work is of a similar personality 3. The work is of equal value taking into consideration such matters as skill, material or mental requirements, responsibility and working conditions.From this it is clear that in order for the complainant to establish they are partaking in like work they must show that they are interchangeable with the comparator at any given moment and without any notice. In the case of Department of posts and telegraphys v Kennefick11, a complaint was made by a female post and telegraph clerk that she was being paid less than her comparator who was doing like work. The employer argued that the male telegraph clerks project description included additional duties which he was seldom asked to perform. The Labour Court in this case refused to be guided y job description and logical that the female employee was entitled to equal pay. However, it has been held that higher qualifications will justify a party receiving a higher salary. This was evident in the Austrian psychotherapists case12 where a group made up primarily of female psychotherapists who had psychology degrees sought equal pay with health check doctors who were employed as psychotherapists. The ECJ agreed that both parties undertook evidently identical activities but found that the medical doctors were also qualified to undertake additional activities due to their qualifications.Therefore, the ECJ held that the dissimilitude in training and qualifications meant that the two parties were not in a comparable situation. Th e courts have also been face with determining situations where the work is similar in nature or equal in value. For example, the case of Dowdall OMahony v 9 female employees13 saw equal pay awarded as the court held that the deviations in the positions were found to be of little importance in the stage setting of the work as a whole.When dealing with issues where the work is deemed to be of equal value, it is the function of the court to number at the skill, physical effort and responsibility needful to perform the work. In 24 women v stick out Grove Services14 the female employees were employed in the refinement area of the linen maintenance section. They sought to compare themselves with a group of male employees who were employed to work in the wash house.The court subsequently compared the work undertaken by one male employee and one female employee and concluded that the male used more physical effort and skill than the female employee in the course of her work and in t hat respectfore they were not doing equal work. Section 19(1) of the acts provides that the claimant and the comparator must be employed to do equal or like work by the same or associated employer at that or any other relevant time which under section 19(2 b) is defined as any time during the three years preceding or following the time at which the action is taken.Despite the benefits of the legislative purvey provided in the Employment Equality Acts, there are numerous problems with their effectiveness and enforcement. Despite the legislation there is a scarcity of discrimination cases relating to pay being taken to national court level and there are a variety of reasons for this. In some situations it is difficult to hold back the scope of similitude for the wording of certain provisions in the legislation as it is not defined in statutory law, such as the meaning of work of equal value.Another issue is that the construct of the hypothetical comparator is not allowed in most co untries and its also the case that the comparator must be employed by the same employer. The problem with this is that locating a real comparator can be difficult in segregated professions where comparators of the opposite sex are rare. In various European states it is the case that the citizens have no faith or trust in the judiciary to appropriately or effectively deal with a case of sex discrimination.Having explored in detail where the relevant provisions of the Employment Equality Acts have been applied to eliminate pay discrimination on gender grounds, it is important to note that the employer is entitled to show that the difference of treatment in relation to pay is not indirectly discriminatory but valid on some other ground. This defence is provided in section 19(5) of the Employment Equality Acts. Under this section employers may pay different rates of remuneration to both men and women but it must be justifiable on grounds other than gender.The test for this stems from t he BIlka Kaufhaus15 case where the employer is required to show how and why the decision to discriminate was made at that point and it was subsequently decided that retrospective justification was unacceptable. The qualifications of the employee, worker flexibility and aloofness of service may be objective grounds if they can be attributed to the needs of the employer. The case of NUI bobsled v Ahern16 concerned a pay differential between male security guards and female bring forward operators.This was deemed to be justifiable as the female operators were paid more for doing less work. This was not due to gender as they had originally been doing an increased amount of work but due to family issues was now doing less. This thinking was move in the case of Dept of Justice, Equality and law domesticise v CPSU17 where the court held that the department had grounds other than gender for the payment of a higher rate to Gardai members performing clerical work compared with civilian cl erical workers.Certain posts within An Garda Siochana are reserved for Gardai. Here, the majority of the 761 clerical posts in An Garda Siochana were female. This was deemed to be justifiable for genuine available reasons and to ensure the continuity of services at all times. Employers may also be able to rely on a defence of market forces where they establish that the payment of a lower wage for some employees is part of the business strategy on economic grounds which can be objectively justified.This was extremely-developed in Enderly v Frenchay Health Authority18 where a comparison was made between speech therapists who were predominantly women and pharmacists who were predominantly men being paid at a higher rate. The employers argument was that differential pay was due to a shortage of pharmacist candidates and not due to sex discrimination found favour with the court. Despite the legislation, the European gender pay gap still stands at 17. 1%, but there are a variety of inno vative ways to help close the gender pay gap19.The Finnish government has coined the concept of an equality pot, which is a summarize of money set aside for municipal governments to fund pay rises in low paid, highly meliorate female sectors as low wages are traditionally paid to female workers in highly feminised branches of the public sector20. This would help to reduce the pay gap and put in place a greater level of equality relating to pay between the two genders. Another method of closing the pay gap is to support the continuity of female employment as they often interrupt their employment in order to manage both their family and professional life.This could be through with(predicate) with(p) by the reconciliation of both and could be achieved through the provision of child care facilities in the oeuvre ensuring female employees were able to bring their children to work21. It should also be noted that imposing an obligation on male workers to be involved in child procrea tion would allow for the continuation of women in employment and would help to close the gender pay gap. References European sexuality Equality constabulary Review-No. 1/2011 Principles of Irish Employment Law Brenda Daly, Michael Doherty 2010,Page 111. Employment Law in Ireland Maeve Regan, paginate 459 published May 2009 European sex activity Equality Law Review No 1/2011, Equality remuneration for Men and Women in Europe Anno 2011 The sexual activity Pay gap on the draw? Petra Foubert http//epp. eurostat. ec. europa. eu/portal/page/portal/eurostat/home/ 1 European Gender Equality Law Review-No. 1/2011 2 Defrenne v Sabena (1976) ECR 455(C-43/75) 3 Gillespie v Health and Social Services Board (1996) ECR 475 4 Principles of Irish Employment Law Brenda Daly, Michael Doherty 2010, Page 111. 5 Nathan Bailey v Gibson (1998) 2 IR 162 6 (1986) ECR 1607 7 Employment Law in Ireland Maeve Regan, page 459 published May 2009 8 (1992) IRLR 423 9 North Western Health board v McKenn a( solecism C-191/03) 10 Principles of Irish Employment Law Brenda Daly, Michael Doherty, 2010, p160 11 Department of Posts and Telegraphs v Kennefick EP 9/1979 12 Case C-309/97 (1999) ECR 2865 13 Dowdall OMahony v female employees EP2/1987 14 (1996) ELR 147 15 (1986) C-170/84 16 (2005) SC IE 40 17 (2008) ELR 140 18 (1993) ELR 1-5535 19 European Gender Equality Law Review No 1/2011, Equality Pay for Men and Women in Europe Anno 2011 The Gender Pay gap on the retreat? Petra Foubert 20 European Gender Equality Law Review No 1/2011, Equality Pay for Men and Women in Europe Anno 2011 The Gender Pay gap on the retreat? Petra Foubert 21 European Gender Equality Law Review No 1/2011, Equality Pay for Men and Women in Europe Anno 2011 The Gender Pay gap on the retreat? Petra Foubert