Introduction
The European Union Member States must incorporate the EU law into their legislative framework and principles in the spirit of a constitutional treaty. In other words, the individual laws of the member states must be interpreted in the context of EU law. This means that the EU law takes precedence over the legislations of individual member states. EU directives addressed to member states provide guidelines on how the member states should enact their respective national laws to give effect to the EU law within a specified timescale (Tridimas 1999, p.214). The EU law is binding at the EU level and subsequently at the EU member states level where it involves both the private and public sectors.
The Equal Pay Law in the UK derives its framework from the EU’s employment law. In particular, the inclusion of the equal pay provision in the EU treaty, the EU equal pay directive, the European Court of Justice case law, and more recently, the inclusion of social equality principles in the European Social Inclusion agenda and the European Employment Strategy has a significant influence on the UK’s Equal Pay law (Dickens 2007, p.464). The EU, through these strategies, advocates for the implementation of laws that promote equal pay for men and women.
Accordingly, the Equal Pay Act that was incorporated into the Equality Act 2010 provides for equal pay and employment conditions for both men and women doing similar roles. Additionally, the 2002 EU directive Fixed-TermTerm Work led to Fixed-Term Employees laws that aim at protecting fixed-term employees from unfavorable treatment relative to other employees. From this view, it is clear that UK law derives its principles from EU law. The principles of the UK Equal Pay law are heavily dependent on the EU Employment law.
The Implications of EU Law on UK Equal Pay Law
The EU equal pay law contains provisions on non-discrimination on various grounds such as gender or nationality (among the member states). Article 12 of the European Commission Treaty (TEC) forbids discrimination and provides that all nationals of the member states qualify for the Union’s citizenship (Dickens 2007, p.467). Additionally, the EU legislation (Directive 2000/78/EC) provides a framework for non-discrimination in employment and all occupations. It forbids discrimination on the grounds of sexual orientation, age, religious beliefs, or disability and provides for equal treatment of workers in all occupations (Wells 2003, p.254). The equal treatment principle implies that no individual shall be subjected to unfavourable treatment, either directly or indirectly, on any of these grounds. Moreover, this principle provides to persons with disabilities. In this regard, employers are required to implement appropriate measures, such as training, to facilitate the participation of persons with disabilities in employment.
With regard to ethnic and racial discrimination, the general EU anti-discrimination principle is enshrined in the EU directive 2000/43/EC (Dickens 2007, p.466). This directive requires employers to implement the principle of equal treatment of persons regardless of their ethnic origin or racial background. The directive covers both private and public employment sectors in areas of healthcare, education, social security, and commerce. It forbids direct and indirect discrimination of persons working in these sectors. Indirect discrimination may involve a less favourable treatment of an individual or an act, though appearing neutral, results in an unfavourable outcome for an individual or a specified group. However, this directive does not include discrimination based on an individual’s nationality.
On the other hand, the UK law contains parts of the European Employment Directives. In particular, the Employment Equality Act of 2003 implements parts of directive 2000/78/EC in the UK. The Act protects persons from employment discrimination based on sexual orientation and religion or beliefs (Dickens 2007, p.471). In 1995, the UK Parliament enacted the Disability Discrimination Act (DDA) to protect persons with disabilities from employment discrimination. According to this Act, disability is defined as any impairment, often medical, which places a person in a disadvantaged position within the society. By contrast, the EU law takes a more social view with regard to disability, and thus, the UK domestic law may not adequately meet the demands of the EU law in this respect.
In 2006, the UK enacted another Employment Equality (Age) law to prevent discrimination based on age. The EU Directive 2000/78/EC provides for the protection of all age groups across Europe, especially older people, from discrimination. Another UK anti-discrimination law, which relates to the EU law, is the Race Relations Act of 1976 that was amended in 2003. This Act protects persons from employment discrimination based on their racial or ethnic origin.
The Legislative Framework of Equal Pay Law
The equal pay law regards equal treatment of both men and women in employment. Under the EU legislation, equality in the treatment of men and women in the same employment is covered by three distinct laws: The Equal Pay directive, the Equal Treatment directive, and the Equal Social Security directive (Equal Opportunities Commission (EOC) 2002, p. 7). The Equal Pay directive (Directive 75/117EC) reflects the laws of the individual member states regarding the principle of equality of men and women in the workplace. It provides that any employer pays persons doing similar roles equally irrespective of their sex (EOC 2002, p. 4). Additionally, the directive specifies that the same criteria for job qualification be used for both men and women during hiring. In other words, the criteria for job recruitment should be not discriminate between the two sexes.
The second EU directive regarding Equal Pay is the Equal Treatment directive (Directive 76/207/EC). This directive regards equality between two sexes in terms of access to work conditions, vocational training, and employment growth opportunities (Fairhurst 2005, p. 106). The directive ensures that all persons have equal access to better work conditions and on-job training opportunities without discrimination based on gender. In particular, it forbids dismissals of women because of maternity issues or pregnancy. However, most notably, this directive does not cover occupations that exhibit bias towards one gender. These two EU directives (Equal Treatment and Equal Pay) demand that individual member states undertake necessary legislative measures to cushion employees from unfair dismissal after filing a legal suit over unfair treatment in their workplace.
On the other hand, three directives protect women and men from unequal treatment in social security schemes. The Equal Social Security directive (Directive 86/378/EEC) provides for equal treatment of both sexes with regard to social security schemes (Fairhurst 2005, p. 109). The directive applies to both the employed and self-employed individuals of both genders. It also covers mothers under maternity leave, persons temporarily out work due to accidents or illnesses and retired workers. However, this directive does not cover contracts at individual levels or schemes comprising of one member. The major purpose of this directive is to prevent employer gender discrimination with regard to the benefits or regulations of their employee pension schemes. In other words, the directive ensures equal treatment of all persons with respect to their pension schemes.
In contrast, the Statutory Social Security directive (directive 79/7/EC) has an expanded scope; it includes the unemployed, disabled workers and individuals incapacitated by industrial accidents or sickness (Tridimas 1999, p.218). Additionally, it specifies that employers should not discriminate employees based on their sex, marital or family status besides the conditions outlined above. The other directive, directive 98/49/EC, concerns the labour mobility between two member states. Its purpose is to protect the pension schemes of workers moving within the Union member states. This EU directive covers the worker’s pension rights in both compulsory and voluntary pension schemes. It applies to persons having pension rights in pension schemes, in any EU member state. Another regulation (EEC/1408/71) covers the pension schemes of the workers moving with their families within the EU (Fairhurst 2005, p. 111). The regulation also applies to social security branches within the EU with regard to old age benefits, maternity benefits and illness benefits. However, medical benefits or social pension schemes of war a victim is not covered by this regulation.
Under the UK law, various acts and laws have been enacted to implement the Equal Pay directive. In contrast, the Equal Pay Act of 1993 (amended to Equality Act 2010) provides for similar terms of employment (pay and work conditions) between men and women. It specifies three conditions regarding this requirement; men and women employees with similar roles, different jobs rated as equivalents through job evaluation and work that requires opposite but similar level of skills (Dashwood, & O’leary 1997, p. 79). Additionally, the implementation of the Equal Treatment directive (directive 76/207/EEC) involved the Sex Discrimination Act of 1986. The legislation protects persons from employment discrimination based on their sexual orientation.
The directive on equal treatment of women and men with regard to social security (98/49/EC) has been implemented in the UK through the Personal and Occupational Pension Schemes Act of 1996, later amended to the Occupational and Personal Pensions Schemes legislations 2005. Additionally, the implementation of the EU’s Statutory Social Security directive in the UK has been done through the Social Security Act of 1991 (c. 42) (Dashwood, & O’leary 1997, p. 83). On the other hand, the EU’s Social Security directive (86/378/EC) has been adopted into the Social Security Act (c. 24) of UK law.
The Equality Act 2010
Various sections of the Equality Act 2010 cover different aspects of workplace discrimination of employees. In particular, issues of training opportunities, recruitment, evaluations, and promotions are covered under this Act. It forbids discrimination in employment based on nine personal characteristics: disability, sex, age, pregnancy, race, religion, marital status, and sexual orientation (Neathey, Dench, & Thomson 2003, p. 19). However, the Act offers some exceptions on employer practices regarding civil marriages and younger employees. Another aspect of the Equality Act relates to the EU directive regarding fixed-term employees. The resultant UK legislations encompass the prevention of unfavourable treatment to contract-based employment relative to similar staff with indefinite contractual terms. Specifically, this UK regulation covers the pay for employees working currently under fixed-term basis as well as new employees under contractual terms.
For part-time workers, the EU directive 97/81/EC of 1997 provides the framework for part-time contractual agreement. It specifies the employment terms and conditions for part-time employment. The directive requires employers to consider worker requests to convert full-time employment to part-time employment and vice versa. Additionally, the directive specifies that employers avail information regarding part-time and full-time employment opportunities to various departments within the organization. The resultant Equality Act, (the Prevention of Less Favourable Treatment legislations 2000), provides for favourable treatment be accorded to part-timers just like full-timers (Davies, & Kilpatrick 2004, p. 124). This implies the employment conditions of employees working part-time must be comparable to that of full-time employees. This includes favourable work conditions and wages. However, this regulation offers exceptions such as childbirth and pregnancy.
Challenges facing the Implementation of the EU Law in the UK
Across the EU member states, a gender pay gap exists, which varies from one state to another. In the UK, the gender pay gap is most pronounced with the pay gap in 2002 being 81% (as a percentage of men’s earning) for full-timers (Davies, & Kilpatrick 2004, p. 121). In comparison, the pay gap was 63% in 1970 but rose to 72% by 1980. This implies that the implementation of the Equal Pay Act produced positive results during this decade (Neathey, Dench, & Thomson 2003, p. 16). However, in 2002 the gender pay gap dropped to 81% in the UK, which means that gender parity in terms of pay is far from becoming a reality. Additionally, part-time employees often have lower pay rates than their full-time counterparts.
Additionally, the requirement for an employer to provide equal pay for equal work often faces difficulties in the current legal structures. In particular, the “equal work” done by employees irrespective of gender is difficult to quantify. In this regard, employers nowadays consider both the nature of the work and the level of quality (value) of the worker’s performance in designing pay structures for their employees (Deakin, & Hobbs 2007, p. 69). The EU employment law caters for the analysis of the work content while most employers in the UK emphasize on performance and competencies of the worker. In today’s market environment, the competencies of a worker increasingly influence the employer pay and reward schemes. The modern pay schemes, unlike the traditional pay systems, seek to reward competency and efficiency. Thus, current pay systems are dependent on the level of performance or competency, which has implications on the pay gap between men and women or age groups.
The performance-based or competency-based pay affect the implementation of the Equal Pay law, as they are often not gender sensitive. The European Court of Justice has issued guidelines in this regard. However, the market forces affect the principles of equal pay in capitalist economies. The current UK equal pay legislation revolves around equal pay for work of the same value, equal pay for similar work and equal pay for unrelated but equivalent work. However, the current pay systems rely not only on the analysis of work done, but also on the analysis of the work performance or standards (Deakin, & Hobbs 2007, p. 71). This calls for a review of the equal pay legislative framework to include these developments and ensure pay parity across the population.
Conclusion
The EU directives require the EU member states to implement regulations in line with the European integration treaty. The provisions of the EU employment law largely inform UK’s Equal Pay law, the Anti-discrimination law and the Equality Act 2010. The UK Equal Pay law aims to establish pay parity between men and women and across all age groups. However, recent trends indicate that most pay structures are competency and performance-based. In light of this, a review of the current equal pay legislations is necessary in order to achieve gender pay parity.
References
Dashwood, A., & O’leary, S., 1997. The Principles of Equal Treatment in Ec Law. London: Sweet & Maxwell.
Davies, P., & Kilpatrick, C., 2004. UK Worker Representation after Single Channel. Industrial Law Journal, 33, pp. 121-151.
Deakin, S., & Hobbs R., 2007. False Dawn for Csr? Shifts In Regulatory Policy and the Response of the Corporate and Financial Sectors in Britain Corporate Governance: An International Review, 15, pp. 68-76.
Dickens, L., 2007. The Road Is Long: Thirty Years Of Equality Legislation In Britain. British Journal of Industrial Relations, 45(6), pp. 463-494.
Equal Opportunities Commission (EOC), 2002. Equal Pay Review Kit. Manchester: Equal Opportunities Commission. Pp. 1-8.
Fairhurst, J., 2005. Law of the European Union. London: Longman Publishers.
Neathey, F., Dench, S., & Thomson, L., 2003. Monitoring Progress towards Pay Equality. Manchester: Equal Opportunities Commission.
Tridimas, T., 1999. The General Principles of Ec Law. Oxford: Oxford University Press.
Wells, K., 2003. The Impact of the Framework Employment Directive on UK Disability Discrimination Law. Journal of Industrial Law, 32(4), 253-259.