The Employment Equality Act, 1998 (as amended) incorporates two key implied terms into contracts of employment in relation to gender equality. One term requires equal pay, and the other term requires equal treatment.
The right to equal pay covers all types of remuneration, including direct and indirect benefits, in cash or in kind. It excludes pension provision which is the subject of separate equality requirements. It includes sick pay, time off for training, redundancy payments, travel benefit, commissions and bonuses.
It is deemed to be a term of the contract under which a person is employed that, he (or she) shall at any time be entitled to the same rate of remuneration for the work which he is employed to do as another, of the opposite gender, who is employed at that or any other relevant time, to do like work by the same or an associated employer. The ‘relevant time’, in relation to a particular time, is any time during the 3 years which precede, or the 3 years which follow the particular time.
Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being men or women) at a particular disadvantage in respect of remuneration compared with other employees of their employer. In this case the persons concerned must be treated as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration. This is unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
Redress for Unequal Pay
A claim for breach of the right to equal remuneration was formerly brought to and determined by the Equality Officers. There was a right to an appeal to the Labour Court. The claims are now made to adjudication officers of the Workplace Relations Commission. There is still a right to appeal to the Labour Court. In this context, the Labour Court acts as a legal body, in contrast to its conciliatory role in industrial relations.
The claimant must show a comparator, relative to whom he or she is receiving less pay or remuneration. The comparator must be doing like work. This does not necessarily mean identical work. There may be “like work”, where
- both perform the same work under similar terms and conditions,
- where each is interchangeable with the other,
- where work is a similar in nature and any differences are relatively minor or irregular or
- where the work is equal in value, having regard to the skills, requirement, responsibility and conditions.
The question as to whether work is of equal value may be investigated by the Adjudication Officer. The AO may visit the workplace, assess the employment and seek information. The comparator must be an actual comparator rather than a hypothetical comparator.
Comparator for Equal Pay I
In an equal remuneration case, a comparator employee or employee of a group company is the reference point. If an employee establishes that a person of the other gender in comparable employment with comparable performance requirements does not receive equal remuneration, there is a breach of the right to equal remuneration, absent justification.
The implied term of each employment contract is to the effect that the employee is entitled to the same rate of remuneration as a comparator, who is employed to do like work for the same employer or an associated employer unless a legitimate objective justification is shown to explain the difference.
The comparator must be doing like work and have the same or reasonably comparable terms and conditions of employment. Like work covers each of the following:
- identical work;
- similar work where the differences are minor;
- work of equal value, where the work is different, but equally demanding in terms of skill, mental and physical responsibilities and general working conditions.
Comparator for Equal Pay II
Where associated employers are involved, the person and the comparator are not regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment. Associated employers are those in groups or under common control.
Nothing is to prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees. If it is shown that average pay for a woman (or a man) is less than average pay for a comparable man (or a woman in the latter case) in the same employment, then the onus is on the employer to justify the difference.
The employer must prove an objective basis for the differential treatment, such as by reason of performance, experience, qualifications or responsibilities.
Legitimate Grounds for Difference
Employers are entitled to differentiate between employees for reasons other than gender (and the other prohibited grounds of discrimination). However, the differentiation must be objectively justified. If objective reasons exist, then actual differentiation must be tailored to the relevant reason and must be no more than objectively necessary.
The onus is on the employer to explain why differences in salary, which affect men and women differently, are objectively justifiable. The objective reasons justifying differential pay rates may be based on such factors as the content of the work, market forces, unionised bargaining and length of service. There may be other potentially legitimate factors.
Market forces by themselves are not generally a sufficient justification, as they may simply encompass the prejudice and discrimination. There must be justification on economic grounds. The market force justification may suffice in certain circumstances. The particular circumstances will be carefully examined by the Adjudication Officer.
Factors Justifying Differentiation
Market forces can be a justification for pay differentials where they are objectively necessary to attract candidates. Employees may have been able to secure better terms and conditions because of collective bargaining and negotiation. Differences in pay due to past collective-bargaining may or may not be sufficient justification, particularly in light of the fact that historically, more men than women may have been unionised.
The length of service will often be an objectively justifiable reason for salary differential on the basis of the experience acquired. However, in certain circumstances rigidly following the length of service as a salary criteria, may not be enough to satisfy anti-discrimination legislation.
Exceptionally, an employee may be treated differently for historical reasons. This may arise where a person was formerly at a higher grade, and due to circumstances, such as incapacity or injury, he is no longer capable of performing that works. In some instances, it may be permitted to employ that person to undertake less onerous work at the pre-existing salary level. This is generally accepted as an exception to the equal remuneration requirement. This so-called “red circling” must not be the result of past discrimination.
Equal Treatment Clause I
In addition to the equal remuneration clause, a gender equality clause is implied into each contract of employment. It relates to terms and conditions of employent, other than a term relating to remuneration or pension rights.
If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a gender equality clause, they shall be deemed to include one. The equal treatment right applies to non-pay discrimination. This ranges from pre-employment matters, such as interviews and advertisements to the terms of employment and access to benefits.
The gender equality clause provides that where an employee is employed in circumstances where the work done by him is not materially different from that done by another in the same employment, and at any time his employment contract would otherwise (but for the equality clause) contain a term which is or becomes less favourable to the employee, then the employment contract is deemed modified so that the term is not less favourable to him, or so that it includes a similar term benefiting the employee.
Equal Treatment Clause II
A gender equality clause does not operate in relation to a difference between the employee’s contract of employment and another employee’s contract of employment if the employer proves that the difference is genuinely based on grounds other than the gender ground.
Where an employer offers employment on terms by which the gender equality clause in the contract of employment would have the effect of modifying the terms of the contract, the making of the offer shall be taken to amount to discrimination against the person offered the employment.
As with equal remuneration, a comparator must be established in relation to an alleged breach of the equal treatment clause. The comparator must be employed in a substantially similar position to the complainant.
Indirect discrimination may occur when an apparently neutral provision disadvantages substantially more persons of one category, relative to that of another, where the distinction is incapable of objective justification. A comparator must be identified in each case. The comparator need not be in an identical situation, provided that the differences are immaterial.
Justifying Different Treatment
Once the employee shows the comparator is engaged in like work with the same or an associated employer within the time frame mentioned, the employer must justify the differences by reference to objective criteria, which are not gender related.
It is a defence for the employer if the difference in treatment is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Statistics are admissible for the purpose of determining the position.
The different treatment must be appropriate and necessary, as well as being objectively justifiable. If the differentiation has a disproportionate effect on one gender relative to the other, it may be deemed discriminatory. In this event, it may only be upheld as lawful, if there is an objective justification.
The European courts have held that in order for the differentiation to be justifiable and legitimate, it must correspond to a real need of the employer, the appropriate method of achieving that need, and be necessary for its achievement. It must be proportionate and no more discriminatory than necessary.
The justification for differentiation must be unconnected with gender and be necessary to achieve a bona fide and necessary business purpose. Grades, structure and red-circling (specific historical differentiation for particular individuals) may be permissible.
References and Sources
Employment Law Meenan 2014 Ch.12
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