Discrimination In Employment Essay

2741 words - 11 pages

Discrimination in Employment

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...

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