Closing the gender pay gap –
the EU parameters for taking positive action
Oisín Quinn, SC1 Paper for the Irish Centre for European Law
26 March 2019
Introduction
1. The problem of unequal pay between the genders remains with us, in spite of a plethora of recent legislative and political initiatives. The following gloomy assessment is offered in a recent article on the subject:
“it is customary to begin speeches on the subject of women's pay inequality by noting the number of years since the Equal Pay Act was passed into law. By this measure, progress has been glacially slow The headline figure of the national gender pay gap is a blunt and lagging indicator. Its persistence suggests that relatively little has changed with regard to the pattern of women's labour market participation. Although an increasing number of employers appear to be adopting the language of equality, the circumstances of women's work has not been transformed.”2
2. This paper has the modest ambition of attempting to describe the scale of gender pay inequality and to consider some measures which may assist in tackling this stubbornly persistent problem. In that assessment, particular emphasis will be laid on the possibility of adopting positive action measures in this area.
3. The paper will be structured as follows:
(1) An overview of the applicable legislative provisions in this area, which prohibit discrimination in pay between men and women, will be provided;
(2) Next, the actual substantial gap in rates of pay as between women and men will be outlined;
(3) The possible causes of this gap will be considered;
1 Many thanks to Stephen Brittain, BL for his considerable assistance in researching and preparing this paper.
2Emma Ritch and Anna Ritchie Allan, “Gender pay gap reporting” (2016) Employment Law Bulletin 4-6
(4) Some of the potential remedies, which have either been proposed or implemented in other jurisdictions, will be then considered; and
(5) Finally, some of the positive action measures which may provide a means of closing the gap in pay between the genders will be outlined together with a consideration of the limitations upon the permissible scope of positive action measures identified in the case law of the Court of Justice of the European Union (“CJEU”).
Legal Provisions Equal Pay
4. The principle of equal pay for equal work has been enshrined in law for a long time. It formed part of the original constitutional architecture of the EU at the time of the adoption of the Treaty of Rome in 1957, Article 119 of which recognised “equal pay for equal work” as a rule of law. An equivalent provision is now contained in Article 157 of the Treaty on the Functioning of the European Union (“TFEU”). Article 157 TFEU applies both vertically to state entities and horizontally to private sector actors and thus the discussion which follows is of as much relevance to private sector employers as it is to emanations of the State.3
5. Directive 75/117 (“the Equal Pay Directive”) was enacted in 1975, which enshrined the principle of equal pay for men and women.4
6. That principle is now contained in Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (“the Recast Directive”).
7. Article 4 of the Recast Directive provides as follows:
“For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated.
In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.”
8. The Employment Equality Act 1998 (“the 1998 Act”) sets out the current version of the principle of equality of pay in domestic law, having updated the Anti-Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1977. Section 19(1) of the 1998 Act provides that a claimant is entitled to the same rate of remuneration as a comparator of the opposite sex who, at the same time or during the preceding three years or the following three years, is doing “like work.”
3Case 43/75 Defrenne v. Societé Anonyme Belge de Navigation Arienne Sabena [1976] ECR 455, §40.
4Article 1, Equal Pay Directive.
Positive Action
9. There are several provisions of EU and national law currently in force which either implicitly or explicitly permit positive action as a means of addressing gender inequality.
10. Section 24 of the 1998 Act as amended by the Equality Act, 2004 provides:
“24. Positive action on equal opportunities [(1) This Act is without prejudice to any measures—
(a) maintained or adopted with a view to ensuring full equality in practice between men and women in their employments, and
(b) providing for specific advantages so as—
(i) to make it easier for an under-represented sex to pursue a vocational activity, or
(ii) to prevent or compensate for disadvantages in professional careers.]”
11. Article 157(4) of the Treaty on the Functioning of the European Union (“TFEU”) gives explicit permission to Member States to adopt measures “providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages...”
12. Article 23 of the Charter of Fundamental Rights (“CFR”) which, pursuant to Article 6 of the Treaty on European Union (“TEU”)5, has the same status as the treaties, provides as follows:
“Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.”
13. Recital 22 of the Recast Directive provides:
“In accordance with Article 141(4) of the Treaty, with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment does not prevent Member States from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers...”.
5 The Treaty on European Union (2007) is one of the primary Treaties of the European Union, alongside the Treaty on the Functioning of the European Union (TFEU)
14. In addition, Article 3 of the Recast Directive provides that member states “may maintain or adopt measures within the meaning of Article 141(4) of the Treaty with a view to ensuring full equality in practice between men and women in working life”.
15. These are the permissive provisions currently in force. In 2012, the European Commission produced a draft Directive, which set the aim of achieving a minimum 40% rate of female non-executive directors on company boards (or 33% for Member States who chose to apply the gender equality target to both executive and non- executive directorships). That aim was to be achieved by 2020 in private sector companies and by 2018 in public sector companies. The Directive would have required companies to make appointments on the basis of pre-established, clear, and neutral criteria. If candidates were equally qualified, the proposed Directive would have required companies to give priority to the under-represented sex. Under the proposed Directive, companies would have been required to issue annual reports on the composition of their boards, with sanctions being imposed in the event of a negative evaluation. Companies which failed to reach the 40% quota would be required to continue to apply the rules and to explain what measures they proposed to take to address their failure to do so.
16. In 2013, the European Parliament (“EP”) approved the draft Directive. However, in spite of continued advocacy on the part of the EP for the adoption of measures of the kind contemplated, the draft Directive has encountered significant opposition from Member States. The national parliaments of five Member States, and one of the houses of the parliament of the Czech Republic6, issued reasoned opinions expressing the view that the proposed Directive violated the principle of subsidiarity. The Council has not yet adopted the Directive. According to the EU Parliament the Council is the
“blocking institution”7 and the proposal is on hold.
The Gender Pay Gap
17. In spite of these legal prohibitions on discrimination in relation to pay which date back to the mid 70s and have been directly effective in every member state since then or from joining the EU, the available evidence suggests that significant differences remain in the rates of pay of men and women doing the same work. This is the Gender Pay Gap (“GPG”). It is stark and it is real.
18. Indeed a recent EU survey8 found that only 26% of Europeans were aware of the legal guarantee of equal pay for equal work in their country. Nonetheless the survey indicated that a clear majority were aware of the gender pay gap with 69% of
6 Denmark, the Netherlands, Poland, Sweden, the United Kingdom, and one of the two chambers of the Parliament of the Czech Republic (Chamber of Deputies).
7 http://www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-rights/file- gender-balance-on-boards
8 https://ec.europa.eu/info/sites/info/files/ebs_465_infographic_gender_pay_gap.pdf
Europeans thinking that women are paid less than men (with only 2% thinking it was the other way around).
19. So, what exactly is the GPG? The House of Commons Women and Equalities Committee states that the GPG measures "the difference between the hourly pay of the average man and the average woman.”9 The GPG has been defined as “the difference between men's and women's average gross earnings, divided by the average of men's gross earnings.”10 A different definition is provided by Michele Barnhart: “[t]he gender pay gap is the difference between the median earnings for women and men.”11
20. In 2003, in a report published by the Economic and Social Research Institute, Ireland’s GPG was estimated at 22%.12 According to figures collected by the Central Statistics Office, in 2008 Ireland’s GPG stood at 17%.13 In 2012, Ireland’s GPG also stood at 17%.14 In 2016, Ireland’s GPG rate stood at 13.9%.15
21. The Irish GPG rate has declined by approximately 8% in the last 15 years. However, the 2016 GPG rate of 13.9% is still, by any objective measure, a large gap in income.
22. The Irish GPG rate is nonetheless below the European average. In 2016, the average GPG in the EU was 16.2%. However, GPG rates vary widely across Europe, from a high of 25.3% in Estonia to a low of 5.2% in Romania. The GPG rate in the UK remains stubbornly high and stood at 21% in the 2016.16 These figures are based on the difference between the average gross hourly earnings of men and women expressed
9Women and Equalities Committee, Gender Pay Gap (second report) (HC 2015-16, 584).
10Jarrod Tudor, “Closing the Gender Pay Gap in the European Union: the Equal Pay Guarantee Across the Member States” (2017) 92 North Dakota Law Review 415, 418.
11Nicole Michele Barnhart, Gender Wage Inequality: Is More Legislation the Answer, (2017) 40 Seattle University Law Review 1435, 1437.
12The Gender Wage Gap in Ireland: Evidence from the National Employment Survey 2003 https://www.esri.ie/publications/the-gender-wage-gap-in-ireland-evidence-from-the-national- employment-survey-2003/ (Accessed 17 October 2018)
13Measuring Ireland’s Progress,
https://www.cso.ie/en/statistics/measuringirelandsprogress/measuringirelandsprogress2008/
14Marguerite Bolger, Claire Bruton and Clíona Kimber, Employment Equality Law (Round Hall, 2012).
15 This figure is based on the difference between average gross hourly earnings of male and female employees as % of male gross earnings, see https://ec.europa.eu/eurostat/statistics-
explained/index.php/Gender_pay_gap_statistics.
16https://ec.europa.eu/eurostat/statistics-explained/index.php/Gender_pay_gap_statistics. See also, Jarrod Tudor, “Closing the Gender Pay Gap in the European Union: the Equal Pay Guarantee Across the Member States” (2017) 92 North Dakota Law Review 415, 419.
as a percentage of the average gross hourly earnings of men. It is calculated for enterprises with 10 or more employees.
Causes of the GPG
23. Multiple factors appear to contribute to the GPG. The following are prominent among them in Ireland according to the Commission17 and recent academic commentary:
(1) Management and supervisory positions are disproportionately held by men.
Men in almost every sector of the economy are more often promoted and are usually better paid in consequence.18 In Ireland in 2009, men were nearly twice as likely to occupy managerial and supervisory roles as women.19
(2) Statistically, women often take charge of important unpaid tasks, such as household work and caring for children or relatives on a larger scale than men.
According to research done by the EU Commission last year, on average, men spend 9 hours per week on unpaid care and household activities whereas working women spend 22 hours on such tasks. One of the consequences of this unequal distribution of household work is that 1 in 3 women reduce their paid hours to work part-time, while only 1 in 10 men do the same.20
(3) Women tend to spend periods out of the labour market more often than men.
Such career interruptions influence hourly pay rates and have an impact upon future earnings and pensions. The largest single factor contributing to the GPG in this jurisdiction is length of service, although with increasing female labour force participation rates, the importance of this factor has begun to diminish.21 Such “vertical segregation” contributes substantially to the GPG. It has been argued that maternity leave may be contributing to the difference in length of service, and hence the GPG, between men and women. In view of the longer average periods of service enjoyed by men, which is attributable at least in part to such factors, it has been suggested that employers should be required to
17 See EU Commission Gender Pay Gap Fact Sheet for Ireland, 2017.
18Helen Russell, Frances McGinnity, Tim Callan and Claire Keane, “A woman's place: Female participation in the Irish labour market” (Equality Research Series, ESRI & Equality Authority, 2009).
19Helen Russell, Frances McGinnity, Tim Callan and Claire Keane, “A woman's place: Female participation in the Irish labour market” (Equality Research Series, ESRI & Equality Authority, 2009
20“The Gender Pay Gap in the European Union” (European Commission, November 2017).
21Helen Russell, Frances McGinnity, Tim Callan and Claire Keane, “A woman's place: Female participation in the Irish labour market” (Equality Research Series, ERSI & Equality Authority, 2009).
justify length of service premiums by showing that length of service in fact contributes to the productivity of the workers concerned.22
(4) Segregation in the education and labour market means that in some sectors and occupations, women tend to be overrepresented, while men are overrepresented in others. In certain countries, occupations predominantly carried out by women, such as teaching and sales, offer lower wages than occupations predominantly carried out by men, even where the same level of experience is required in each job. Blau and Khan have argued that a law which required equal pay for equal work within the same profession or firm would likely prove ineffective in addressing overall societal inequality in pay between men and women because the labour market is to some degree segmented by gender, with women disproportionately working in lower paid fields.23 It has been estimated that the risk of being low paid is 1.3 times higher for women than for men.24 It has been argued that one of the reasons why women more so than men choose certain careers is in order to enable them to combine work and familial responsibilities, which are not accommodated to the same extent in more remunerative fields of employment.25 The attachment of pay to seniority can in itself be questioned in circumstances where not only can this contribute to the GPG but where there is research that shows that experience and performance are not always linked.26
(5) In addition to these contributory factors, discrimination undoubtedly continues to play a role.27
24. In 2003, it was estimated that some two-thirds of the GPG in Ireland was attributable to factors other than discrimination.28 Thus, part of the GPG is certainly attributable to
22Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap”
(2012) 9 Irish Employment Law Journal 112, 115.
23Francine D. Blau and Laurence M. Kahn, “Gender Differences in Pay” (2000) 14 Journal of Economic Perspectives 75.
24Helen Russell, Frances McGinnity, Tim Callan & Claire Keane, “A woman's place: Female participation in the Irish labour market” (Equality Research Series, ESRI & Equality Authority, 2009), 48.
25Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap”
(2012) 9 Irish Employment Law Journal 112.
26 See Peak: Secrets from the New Science of Expertise by Anders Ericson & Robert Pool at pgs 8, 126 & 133 and “Influence of experience on performance of individual surgeons in thyroid surgery:
prospective cross sectional multicentre study”, British Medical Journal 2012; 344 which found that optimum individual performance in surgery cannot be passively achieved or maintained by accumulating experience.
27For a summary of these factors, see “The Gender Pay Gap in the European Union” (European Commission, November 2017).
28Frances Meenan and Owen Garvey, “The Gender Pay Gap in Ireland – a Legal Review” (2010) 17 CLP 225; Marguerite Bolger, Claire Bruton and Clíona Kimber, Employment Equality Law (Round Hall,
vocational, educational, and temperamental differences between the genders, and it cannot be said that the GPG is entirely the outgrowth of discrimination.
Remedies for the GPG: an Overview
25. In this section some proposed remedies for the GPG will be discussed.
A legal claim for compensation for breach of the right to equal pay
26. The first and most obvious means of addressing a GPG in a particular sector or company is simply to bring a claim seeking compensation under the relevant provisions of the 1998 Act. However, under Irish law it is necessary for a complainant in a pay discrimination claim to show that there is a person of the opposite gender in the same employment working for the same, or a related, employer.29 The difficulty in identifying an appropriate comparator is a substantial obstacle in the path of a claimant in seeking to bring home a pay discrimination claim,30 though it has been suggested that the segmentation of labour markets by gender, referred to above, is a less acute problem in Ireland than in other jurisdictions.31
27. In addition, the option of litigation is of somewhat limited utility from the point of view of addressing systemic discrimination, since it places emphasis on compensating a particular individual rather than bringing about the kind of fundamental cultural and behavioural changes which are necessary to address the GPG.
28. Moreover, the amount of compensation which may be awarded, which is capped at a limit of 2 years salary, or €13,000 for non-employees, does not provide a significant deterrent to employers who are in dereliction of their obligations under employment equality law and, therefore, cannot provide a catalyst to the kind of fundamental changes which are needed.32 In addition, it has also been noted that the “complexity of claims and proofs required by claimants in challenging unequal pay” presents difficulties, as do delays in the investigation of complaints.33
2012) 487-488. See also, “The Gender Pay Gap in the European Union” (European Commission, November 2017)
29Brides v Minister for Agriculture [1998] 4 IR 250.
30Frances Meenan and Owen Garvey, “The Gender Pay Gap in Ireland – a Legal Review” (2010) 17 CLP 225.
31Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap” (2012) 9 Irish Employment Law Journal 112, 114.
32Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap” (2012) 9 Irish Employment Law Journal 112, 114.
33Marguerite Bolger, Claire Bruton and Clíona Kimber, Employment Equality Law (Round Hall, 2012) 487-488; Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap” (2012) 9 Irish Employment Law Journal 112, 116.
29. For this reason, one author puts the point starkly when she says that “the complaints- led model of enforcement is not working” and that “the model cannot produce systematic progress towards pay equity.”34
An Equality Authority inquiry and discrimination notice
30. A second means by which the principle of equality of pay may be enforced and the GPG tackled is by means of an inquiry by the Equality Authority, which has the power to carry out inquiries and, if they find discrimination, to serve an anti-discrimination notice on the employer concerned.35
Persuasion & Mediation
31. Third, s. 78 of the 1998 Act provides for referrals to mediation. It has been suggested that attempts to mediate disputes regarding gender-based discrimination in the area of pay, while perhaps satisfactory to the individual involved, may not best serve the interests of equality generally, since mediation provides employers with an opportunity to buy off particular claims without addressing the overall problem of discriminatory practices.36
A legal entitlement to work part-time
32. Fourth, it has been suggested that parents should be conferred with a statutory entitlement to work part-time, so as to enable women to continue to work in their chosen field of employment, even during their child-bearing years.37 In France, Germany, Finland, Holland and Belgium, there is a legislative right for parents to work part-time.38
33. The European Court of Justice has grappled over the years with the statistically supported fact that in terms of both pay and access to employment discrimination against part-time workers can indirectly amount to a form of prohibited discrimination.
34. It is interesting to remember that one of the early seminal cases in the CJEU jurisprudence dealing with equality was Bilka-Kaufhaus39 in 1986 where the CJEU
34 Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap” (2012) 9 Irish Employment Law Journal 112, 115.
35Ss. 58-66 of the 1998 Act.
36Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap” (2012) 9 Irish Employment Law Journal 112, 113-114.
37 Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap” (2012) 9 Irish Employment Law Journal 112, 116.
38 Helen Russell, Frances McGinnity, Tim Callan and Claire Keane, “A woman's place: Female participation in the Irish labour market,” Equality Research Series (ESRI & Equality Authority, 2009) 48.
39 Bilka-Kaufhaus GmbH v Weber von Hartz39 (1986) C-170/84.
held that failing to allow a part-time female employee access to an occupational pension scheme could amount to indirect discrimination on the grounds of gender.
35. More recently in HK Danmark40 the CJEU held that the obligation to provide
reasonable accommodation to enable a person with a disability to have equal access to work included considering providing a person previously working full-time who had become disabled with the opportunity to work part-time. At para 64 the CJEU states:
“Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article.”
Name & Shame
36. A fifth method of addressing the GPG, which has achieved some prominence recently, is to require employers to publish and circulate publicly certain information concerning the GPG in their companies.
37. In the UK, the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172) (the Private Sector Regulations) and the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353) (the Public Sector Regulations) became law on 6 April 2017 and 1 April 2017 respectively (“the UK Regulations”).
38. Under the UK Regulations, employers must provide information on relevant full pay employees if they employ 250 employees or more.
39. The information which must be provided includes the following:
• the difference between the median hourly rate of pay of male full-pay relevant employees and that of female full-pay relevant employees;
• the difference between the mean bonus pay paid to male relevant employees and that paid to female relevant employees;
• the difference between the median bonus pay paid to male relevant employees and that paid to female relevant employees;
• the proportions of male and female relevant employees who were paid bonus pay; and
• the proportions of male and female full-pay relevant employees in the lower, lower middle, upper middle and upper quartile pay bands.
40. The relevant information must be published on the employer’s website and must remain there for three years and, in the case of private sector information, it must additionally be published on a website designated by the Secretary of State.
40 HK Danmark, on behalf of Jette Ring v Dansk almennyttigt Boligselskab (C-335/11)
41. The UK Regulations do not as yet provide a mechanism for enforcement, although s.
78(5) of the parent legislation did envisage the creation by statutory instrument of summary criminal offences punishable by a fine. By contrast, in Sweden employers are required to prepare an action plan on pay equality, in which the measures proposed to deal with the GPG are detailed.41
42. The enforcement machinery under the UK Regulations is therefore weak and it is evidently hoped that employer’s own analysis of the information will, together with the prospect of adverse publicity, prompt them to take action to address the gender pay gap in their organisations.42
43. A recent legislative proposal in this jurisdiction to address the GPG is the Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill 2017 (“the 2017 Bill”), which substantially mirrors the UK Regulations in the requirements it imposes.
44. The 2017 Bill was introduced in the Seanad in May 2017 and completed Committee Stage in October. It is modelled on the UK provisions which have just been considered.
It would oblige employers with 50 or more employees to publish information relating to the pay of male and female employees. In particular, it would require employers to publish information concerning mean hourly rates of pay; median hourly rates of pay;
mean bonus pay; median bonus pay; the proportions of employees who receive bonus payments; and the proportions of employees who fall into the lower, lower middle, upper middle and upper quartile pay bands. The Bill proposes to give the Irish Human Rights and Equality Commission enforcement powers, requiring employers to complete pay reviews on a periodic basis and to publish the information, on pain of criminal penalty.43
45. The Commission44 published an action plan last year proposing a number of measures to tackle the gender pay gap and legal measures to require transparent information is one of the fundamental pillars of the strategy.
41Discrimination Act 2008, Ch. 3 (Swed.). See, Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap” (2012) 9 Irish Employment Law Journal 112, 116.
42Daphne Romney QC, “Legislative Comment Gender pay gap reporting - the new law” (2017) Employment Law Bulletin 138, 6-7.
43 G Brian Hutchinson, “Editorial: Gender Pay Gap Reporting on the Cards” (2018) 25 Commercial Law Practitioner 50.
44 REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE, Report on the implementation of
46. The Commission proposes four suggested core measures related to pay transparency which are:
• The individuals’ entitlement to request information on pay levels;
• company level reporting;
• pay audits; and
• equal pay addressed in collective bargaining.
47. The purpose of providing this information is explained further by the Commission as follows:-
“Enabling employees to request information on pay levels for categories of employees performing the same work or work of equal value, broken down by gender, including complementary or variable components such as payments in kind and bonuses,20 makes the wage policy of a company or organisation more transparent21. Such information is valuable for employers, trade unions and workers, helping them identify unexplained gender pay gaps and to resolve them through dialogue. It also makes it easier for employees to put their salary levels in perspective within their own category and in comparison with similar categories. In cases of discrimination, this improves the prospects for success of legal action before national courts and would consequently have a dissuasive effect.”
Other ideas
48. Some of the other proposed remedies for the GPG will either bear fruit only in the very long-term or are remote from the experience or expertise of lawyers, and hence are beyond the scope of this paper. Such proposals include: tackling gender stereotyping from a young age through education; reducing child care costs;45 and the standardisation of wage rates through collective bargaining.46
Positive Action
49. The final policy option for dealing with the GPG is the adoption of positive action measures and it is with these that the remainder of this paper will be concerned.
Commission Recommendation on strengthening the principle of equal pay between men and women through transparency, Brussels, 20.11.2017 COM(2017) 671 final.
45Julia Lawlor, “An Examination of the Effect of the Equality Legislation on the Gender Pay Gap”
(2012) 9 Irish Employment Law Journal 112, 116.
46Frances Meenan and Owen Garvey, “The Gender Pay Gap in Ireland – a Legal Review” (2010) 17 CLP 225.
Positive Action and the GPG
50. “Positive action” has been described as “consisting of proportionate measures undertaken with the purpose of achieving full and effective equality in practice for members of groups that are socially or economically disadvantaged, or otherwise face the consequences of past or present discrimination or disadvantage.”47
51. Positive action measures usually take effect either at the point at which employees are recruited or in determining which of an organisation’s existing employees to be promoted to more senior positions.
52. There are a number of ways in which positive action measures could be employed to ameliorate the causes of the GPG identified above.
53. First, priority could be given to the recruitment of women to more senior supervisory and managerial roles, thus addressing the current male dominance in management roles.
54. The case of Marschall v Land Nordrhein Westfalen48 concerned a challenge on equality grounds to a scheme which prescribed that, where there were fewer women than men in higher grade posts, women were to be given priority for promotion in the event of equal suitability, competence and professional performance, in the absence of specific reasons why the male candidate should be favoured.49
55. The CJEU held that a rule of this kind, which gave priority to equally qualified female candidates in sectors in which they are underrepresented, was permissible if such a rule counteracted behaviours and attitudes which negatively affected women and which compensated inequalities which existed in the real world. However, the court stated that a rule which gave absolute and unconditional priority to women would not be permissible.50
56. The CJEU applied its decision in Marschall in Badeck v Landesanwalt beim Staatsgerichtshof des Landes Hessen.51 The case concerned a challenge to German public sector rules which sought to give priority to women in promotion, access to training, and recruitment. It was held that these rules were compatible with the principle of equality, in circumstances where the rules did not rigidly favour women over men, where the application of each candidate was assessed on its own merits, where gender was never the decisive factor, where it could only be taken into account where two candidates could not be distinguished on the basis of their qualifications, and where priority was only given to women in sectors where they were underrepresented.
47“International Perspectives on Positive Action Measures: a Comparative Analysis in the European Union, Canada, the United States, and South Africa” (European Commission, 2009), 6.
48Case C-409/95 Marschall v Land Nordrhein Westfalen [1997] ECR I-6363.
49Case C-409/95 Marschall v Land Nordrhein Westfalen [1997] ECR I-6363, §3.
50Case C-409/95 Marschall v Land Nordrhein Westfalen [1997] ECR I-6363, §39.
51Case C-158/97 Badeck v Landesanwalt beim Staatsgerichtshof des Landes Hessen [2000] ECR I- 1875.
57. The Court has, however, disapproved of schemes which conferred unconditional priority on women. In Abrahamsson,52 a rule applicable in Swedish universities, which gave priority to sufficiently qualified candidates of the underrepresented gender, even in circumstances where a male would otherwise have been appointed to the post, but where the difference in qualifications between the two candidates was not so great as to violate the objectivity of the appointments process, was held to be impermissible, on the basis that the rule in question envisaged the appointment of less qualified female candidates.
58. The CJEU stated:
“In contrast to the national legislation on positive discrimination examined by the Court in its Kalanke, Marschall and Badeck judgments, the national legislation at issue in the main proceedings enables preference to be given to a candidate of the under-represented sex who, although sufficiently qualified, does not possess qualifications equal to those of other candidates of the opposite sex.”53
59. Similarly, in Briheche,54 the court invalidated a French rule which exempted widows, but not widowers, from the age limit for taking civil service entry examinations was found unlawful on the basis that the rule automatically and unconditionally gave priority to women over men and was not proportionate.
60. It has been suggested that the essential issue in determining the permissibility of positive action measures under EU law is whether the measures concerned satisfy the requirement of proportionality.
61. This was expressly recognised in Lommers,55 where the court stated:
“ …the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued...”56
62. Therefore, while it is permissible to give priority to women in promotional competitions, as a means of counteracting the GPG, it is necessary for such measures to avoid giving automatic and unconditional priority and it is also necessary to show that the measures concerned satisfy the requirement of proportionality.
63. Given the statistical tendency of women to chose careers that traditionally offer more flexibility in terms of part-time work and time-off which in turn tend to be lower paid, a second positive action measure which can be adopted is to set rules requiring more women to be recruited and promoted in the more remunerative fields of employment and
52Case C-407/98 Abrahamsson [2000] ECR I-5539, §§49-50.
53Case C-407/98 Abrahamsson [2000] ECR I-5539, §§45, 51-52.
54Case C-319/03 Briheche v Ministre de l’Interieur, Ministre de l’Education nationale and Ministre de la Justice [2004] ECR I-8807.
55Case C-476/99 Lommers [2002] ECR I-2891.
56Case C-476/99 Lommers [2002] ECR I-2891, §39. See also, Case C-319/03 Briheche v Ministre de
to oblige more employers in those sectors to offer part-time or more flexible working hours. In order to be compatible with EU law, such measures would also have to avoid giving automatic and unconditional priority to women and would similarly have to comply with the principle of proportionality.
64. A third positive action measure which might be taken to counteract the GPG would be to reconsider length of service as a criterion in recruitment and promotion competitions. In view of the recognised differences in length of service between the genders, length of service could either be de-prioritised as a factor in remuneration policy and recruitment competitions or the weighting of women’s length of service could be adjusted to take this into account; in other words, women could be given a higher weighted average for length of service in recruitment and promotion competitions, in recognition of any time spent out of the workforce, in order to offset the advantages enjoyed by males arising from the fact that women frequently assume a disproportionate share of the burden of familial and child-rearing responsibilities.
65. However, any such measure would have respect the limits laid down by the decision of the CJEU in Griesmar.57 The issue before the court in that case was whether a service credit provided to female civil servants for each of their children for the purpose of calculating their pension was permissible. Male civil servants could not avail of this service credit, which was not assessed on the basis of maternity leave actually taken and was not tied to any identifiable disadvantage which a female civil servant suffered as a result of having children. For this reason, the CJEU held that the measure unlawfully discriminated against male workers who had assumed child-rearing responsibilities and therefore constituted unlawful discrimination.
66. A less blunt positive action measure which could be adopted in order to address the systemic difference in length of service between men and women would be to give preference to the underrepresented gender in the allocation of childcare services.
67. In Lommers,58 the CJEU upheld a national law measure which reserved childcare places for female workers. Childcare places were only made available to female workers, save in the case of emergency. It was submitted in support of the legality of these measures that the lack of childcare amounted to barrier to female participation in the workforce and that the impugned measures removed a barrier to labour force participation.
68. The court held that measures “which give a specific advantage to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men” were permissible.59 A critical factor in the decision of the court to uphold the measures concerned was the fact that provision was made for providing males with childcare places in exceptional cases, 60 an example of which would be where they were bringing up children alone.
57Case C-366/99 Griesmar [2001] ECR I-9383.
58Case C-476/99 Lommers [2002] ECR I-2891.
59Case C-476/99 Lommers [2002] ECR I-2891, §32.
60Case C-476/99 Lommers [2002] ECR I-2891, §45.
Conclusion
69. It is clear that the GPG is real and significant and stubbornly resistant to most legal initiatives implemented so far. It has certainly resisted the straightforward legal prohibition on pay discrimination.
70. The continuing causes of the GPG have generally been identified. More flexibility in the sectors of work which pay more is certainly a requirement. There is no reason why this cannot be backed up by, for example, a legal entitlement to work part-time. There is also a need for employers to seriously consider whether seniority alone should justify higher pay, or to be required to allocate seniority to time spent on child rearing.
71. It seems inevitable, given the stubborn persistence of the GPG, that positive action should be provided for by member states. The ambit of positive action permitted has been generally defined now by the CJEU as allowing rules that give a specific advantage to women provided those rules do not automatically and unconditionally give a preference to women and provided also that they are proportionate.
72. Since the relevant EU legal provisions are permissive in nature it is however necessary for each member state to proactively initiate and take the necessary steps to introduce such legal measures as will lead to the introduction of such positive action measures.
Oisín Quinn, SC