Critically evaluate the effectiveness of the relevant provisions of the Employment Equality Acts 1998-2011 (and their predecessors) in eliminating pay discrimination on the ground of gender within the workplace and thus reducing the gender pay gap.
The European Union is founded upon core values including respect for human dignity, freedom and equality between men and women. This equality extends to the workplace where both men and women are entitled to equal conditions of employment and pay. Articles 20 and 23 of the charter of fundamental rights similarly states that all persons are equal before the law and that equality between men and women must be ensured in all areas “including employment, work and pay.” Despite this the average hourly gender pay gap within the European Union stands at 17.1% but varies from 6%- 34% depending on the member state. In an attempt to close the gender pay gap in the European Union, various legislation has been drafted and implemented over the previous forty years. The right to equal pay is set out in Article 157TFEU(formerly Art 141,Art 119) which expressed that “each member state shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value shall be applied”. The subsequent legislation for preventing discrimination in the workplace was incorporated into Irish law by means of the Anti-Discrimination (pay) act 1974 and the Employment Equality act 1977. The jurisprudence for the right to equal pay is the landmark case of Defrenne v Sabena which saw the European court of justice establish that the right to equal pay was legally binding in agreeing that the complainant’s right to equal pay derived directly from Article 119(now Art 157TFEU). The law in Ireland is now governed exclusively by the Employment Equality acts 1998-2004 which replaced the acts of 1974 and 1977. Article 8 of the Treaty on the functioning of the European Union states that in all its activities the Union “shall aim to combat discrimination based on sex, racial or ethnic origins, religious belief, disability, age or sexual orientation.”
The issue of discrimination in relation to equal pay can arise both directly and indirectly as has been seen in the case law and legislation surrounding this area. The case of Gillespie v Health and Social Services Board defined discrimination as “the application of different rules to comparable situations or the application of the same rule to different situations”. Article 2(1) of the Recast equal treatment directive has defined direct discrimination as occurring in a situation where “one person is treated less favourably on the grounds of sex than another is, has been or would be in a comparable situation”. A necessary requirement of the test for direct discrimination is a suitable comparator that the complainant can compare themselves to in order to establish discrimination has occurred. It is then the duty of the tribunal to consider the reasons for selecting that comparator and whether they are suitable as a relevant comparator in the given situation. Section 6(1) (a) of the Employment equality acts allows a person to select a hypothetical comparator as the scope extends to situations where a complainant “would be” treated less favourably, but this is not the case when concerning issues relating to pay. It is important to note that there are exemptions to the prohibition on discrimination.
Under section 25 of the Employment equality acts an employer may be permitted to treat employees differently based on gender. This is only non-discriminatory where the objective is legitimate and proportionate. The Employment equality acts also provide for the employer to promote equal opportunities for both male and female employees. This may come in the form of vocational training or improving working conditions which help create a higher skilled workforce and help to address imbalances evident in the workforce by...
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