EU Law: Gender equality in the work place

The notion of gender equality was introduced by the Treaty of Rome in 1957. The Treaty of Amsterdam quickly increased that power by introducing Article 19 TFEU on combating discrimination. The Charter of Fundamental Rights has also added additional protection for citizens.

Article 157 TFEU is currently the most influential provision governing gender equality, and stemmed from the Defrenne case, in which the French government were worried that they were at an economical disadvantage because their law was already enforcing equal pay for men and women, where other member states were not yet obliged to do so. Making Article 157 TFEU directly effective in all member states meant that not only were France back on par with the other member states, who now had to adhere to the EU provisions providing equal pay for men and women, but it also gave additional rights to women across Europe! Gender equality is now also governed by the Recast Directive 2006/54, the provisions of which largely previously existed in the form of 3 different equal treatment directives. Namely: equal pay, equal treatment and social security.

With regards discrimination in pay, Defrenne v Sabena demonstrated direct discrimination, whereas Jenkins demonstrated indirect discrimination. The Cadman case is worth noting although wasn’t a case of gender discrimination but of other discrimination in the work place. It established that paying longer-serving employees a higher wage than newer employees was discrimination where the difference in pay was not based on skills. Cadman set a precedent that all wages must be based on the skill set of the employee, as opposed to any other grounds such as gender or length of service.

The meaning of 'pay' has lead to some ambiguity as both direct and indirect forms of payment are now considered when evaluating any possible discrimination. Direct payment would be in the form of money. Indirect payment can include all the additional benefits provided by an employer in exchange for work. In Garland the court held that travel facilities constituted pay, thus when retired males were permitted to continue using their travel benefits but the women were not, it gave rise to discrimination. In Rinner-Kuhn the court established that sick pay constituted payment in kind. In Barber the court held that redundancy pay was also a form of payment, whether or not the person was voluntarily made redundant. In Gillespie the court said that maternity benefits were pay, although it’s important to note that there can be no comparator when the case involves pregnancy, for obvious reasons. In Bilka-Kaufhaus an occupational pension constituted payment.

The law on gender equality in the work place started off on equal pay for equal work, i.e. where the male and female were doing the exact same job but being paid differently. However, all legislation changes since the Treaty of Rome have extended this principle further, and now the EU is equally as concerned with ‘equal pay for work of equal value’. This means that the male and female do not need to be doing the same job but their contributions to their respective fields should be seen as equally weighted. Enderby, for example, concerned a pharmacist and a psychologist being paid different wages; the female counterpart claimed that she was being discriminated against as they were doing work of equal value. The court agreed that although the job tasks were different, they were doing equal value work. This may seem confusing because it’s so difficult to quantify the roles done in different professions and whether their contributions are ‘equal’, however, the NHS have adopted a system of ‘banding’ where this works surprisingly well. The employees of the NHS will be banded within their fields, depending on their level of expertise, so whilst some jobs (for example, a nursing assistant) may go in as a Band 1 and may only go up to a Band 4, others (for example, a surgeon) may go in at a Band 6 and go up to the highest level. One alternative case where the courts held it was legitimate to pay the male and female differently was Brunnhofer, in which two employees of a bank employed at the same time and in the same job category, fulfilled different roles and tasks. The male was paid more because his work involved more arduous tasks than his female counterpart. She claimed it was discrimination but the court disagreed.

The burden of proof always lies with the complainant to prove that she has been discriminated against. They must prove 1) they have been paid less, using a comparitor to prove this (e.g. female would use her male employee as the comparitor), and 2) they were doing work of equal value. It's worth noting that in Enderby the burden of proof shifted to the employer, which was an exception to the rule.