Fair game

It is more than 22 years since the Equal Pay and Sex Discrimination Acts came into force, but the queue of victims of discrimination outside the industrial tribunals never seems to diminish: in 1995/96 there were 4,371 applications.

Women now make up 43% of the workforce but they still earn less than their male colleagues. In the year to April 1996, the average gross income for women in the UK was only 79.9% of the average for men.

There is a battery of legislation already passed by the UK and the European Union aimed at eradicating unjustifiable discrimination between the sexes.

Domestic law is entrenched in three statutes: the 1970 Equal Pay Act, the 1975 Sex Discrimination Act and the 1995 Pensions Act. The European dimension adds another layer in the form of the Equal Treatment Directive and the Treaty of Rome itself.

In broad terms, the Equal Pay Act seeks to ensure that where men and women do comparable jobs they receive the same pay. Claims under the Act must be submitted to the industrial tribunal within six months of the employer and employee parting company.

Earlier this year, Professor Pamela Enderby and Lesley Cogher blazed a trail by bringing a case against the NHS. The two speech therapists successfully argued that they deserved pay equal to that of their colleagues in the male-dominated profession of clinical psychology who earned several thousands of pounds more a year. The Department of Health settled out of court.

The 1995 Pensions Act requires that men and women are equally eligible to join an occupational pension scheme. Also, trustees of such schemes must not exercise discretion in treatment of members.

The Equal Pay Act applies not just to pay but to all contractual benefits.

This might include factors such as rights under an occupational pension scheme, or the use of a company car. The Sex Discrimination Act has a wider application. It covers discrepancies in treatment that are unrelated to pay. This can cover a wide range of situations, from sexual harassment to discrimination against pregnant workers. To succeed with a claim, employees must establish that they have been discriminated against on the basis of gender and that they have suffered a detriment.

In June this year, EU employment ministers agreed on new rules, shifting the burden of proof in sex discrimination cases. This came under the auspices of the Social Chapter, to which the UK government is now committed. The thrust of the change is that employers will have to prove that they have not discriminated against an employee on the basis of their sex, rather than the employee having to prove that they did. Member states have until January 2001 to introduce the legislation.

One of the most frequent sources of conflict are claims related to pregnant employees. It has been established that treating a woman less favourably because she is having a child automatically amounts to sex discrimination, the rationale being that only women can be in this situation.

Claims may result not just from direct but also indirect discrimination.

Typically, this is when the treatment given to one category of employee is less favourable than for other sections of the workforce and when that category consists predominantly of one sex. The employer will be vulnerable to a claim unless it can be proved that any conditions imposed before a benefit is made available are objectively justified, irrespective of the sex of the person to whom it is applied.

Many of the cases brought have involved part-time workers who argue that employers have breached the European Equal Treatment Directive. There are more female than male part-timers because women have traditionally taken responsibility for looking after children. In the past, those who worked shorter hours were denied access to employee share-option and pension schemes, although legislation has now been ushered in to protect such rights. Until recently, some had no protection against unfair dismissal while others only gained general protection after five years’ employment with the same company. Full-time employees, though, automatically earn such rights after two years’ continuous employment. One case which graphically illustrates the arguments will continue to rage until the European Court of Justice resolves the issue: R v Secretary of State for England ex parte Seymour-Smith.

It involves two women who were unable to take their employer to the industrial tribunal for unfair dismissal because they had not completed the two-year employment period. The two have argued that this is indirectly discriminatory under the European Equal Treatment Directive and Article 119 of the Treaty of Rome.

The rationale, which is backed up by statistics, is that women change jobs more frequently than men and are therefore less likely than their male counterparts to meet the requirement for two years’ continuous employment.

The case has created great uncertainty for employees and will finally be resolved by the European Court of Justice, to which it has been referred by the House of Lords.

Victims must submit their claim to the tribunal within three months of the alleged incident. Yet in many cases the discrimination is not a single event but an ongoing process.

In a case last year, Cleveland council was reported to have paid #1m in settlement to 2,000 workers who claimed sex discrimination. The council was required to submit its school meal service to competitive tendering and, in order to win the contract for its in-house staff, cut the wage bill by introducing a new pay structure. Dinner ladies received an increase in their pay but their school holiday retainer was stopped. Since this was the only section of the workforce that had to make sacrifices, the women challenged the treatment as sex discrimination. The claim was successful.

Compensation claims vary. Unlike claims of unfair dismissal, the industrial tribunal has the power to make unlimited awards, although the average in 1995/96 was only #2,708. This shows a marked decline from the previous year, when compensation levels reached #5,700.

For every case that reaches the tribunal, many are settled quietly after an acrimonious exchange of letters. In some of these, compensation payments are much higher because of fear of publicity.

In recognition of the problems employers face when trying to ensure that all staff are treated fairly in pay, both the Equal Opportunities Commission (EOC) and the European Commission have produced codes of practice.

The latter, issued in July 1996, provides firm advice to employers and trade unions on how to eliminate sex discrimination – based on job classifications or evaluation schemes – from pay structures. It is not legally binding. Neither is the EOC’s. Issued in March this year, it also aims to offer practical advice to employers. The EOC says that sex discrimination in pay mostly occurs now because women and men tend to do different jobs or work to different patterns.

The true test of the success of these codes will be how many equal pay and sex discrimination claims appear before the industrial tribunal in years to come.