Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information in the Government's report and its observations on the comments of the Trades Union Congress (TUC) dated 20 December 1991, 13 January 1993 and 24 December 1993 concerning the application of the Convention.

1. The Committee recalls that the TUC, in its earlier communication, raised points concerning the inadequacy of procedures in equal pay claims (the complexity and lack of clarity in the legislation which resulted in long delays in the determination of workers' rights; the fact that an employer's existing job evaluation study could act as a bar to an equal value pay claim; the impossibility of extending an equal pay decision awarded to an individual applicant to all employees in the same employment who do the same or broadly similar work). The TUC, in its subsequent communications, expressed concern that the Trade Union Reform and Employment Rights Bill (now enacted as the Trade Union Reform and Employment Rights Act, 1 July 1993), in abolishing wages councils, would remove this statutory protection (including enforcement by a wages inspectorate) from a great many women workers and consequently women's remuneration as a proportion of that of men would decline. The TUC considered that the remaining right to bring an individual complaint to an Industrial Tribunal under the Equal Pay Act is an insufficient remedy because of the long delays in that procedure. The TUC pointed out that the abolition of the wages councils led it also to lodge a complaint in August 1993 to the Commission of the European Communities alleging that the removal of these mechanisms has led to the non-application of European Community law.

The Government responds, firstly, that it is concerned that there should be as little delay as possible in equal value cases, but that the law in this area is inherently complex and procedures take some time; it points out, however, that it is examining ways of reducing the time delays and will dicuss procedural changes with the Equal Opportunities Commission shortly (some changes corresponding to recommendations made by the Commission to improve the equal pay laws are already under way, as explained below). Secondly, it rejects the TUC's claim that the abolition of the wages councils will hinder the Government's application of the principle of this Convention. The Government challenges the effectiveness of minimum wage fixing in this connection and the inference that employers will cut women's pay following abolition. It adds that women continue to be able to seek redress if they allege sex-based wage differences under the Equal Pay Act.

The Committee recalls that Article 2(2) of the Convention permits flexibility in the choice of methods for applying the principle of the Convention. It also recalls that, whatever the method chosen, its enforcement must have an impact. This was highlighted in paragraphs 102 to 131 and paragraphs 166 to 179 of the Committee's 1986 General Survey on Equal Remuneration, where it examined, respectively, the bodies to promote, enforce or supervise the principle of the Convention and the effectivenes of remedial action in ensuring its application. While aware that the impact of the abolition of the wages councils may not yet be felt, it draws the Government's attention to the importance of effective machinery to translate the principle into practice. Despite the Government's explanation of the current system, the Committee also must note the TUC's apprehensions for the implementation of the Convention in these circumstances.

It therefore asks the Government to supply information (including statistical data on actual wages paid to men and to women in the sectors previously covered by wages councils) showing the impact of the abolition of the previous system. It would also like to receive information on the numbers of equal pay claims brought since the change, the time taken to conclude them and indications of the awards made. In addition, the Committee asks the Government to inform it of the outcome of the TUC complaint to the Commission of the European Communities.

2. With reference to the Committee's previous comments on equal remuneration in the state pension and occupational pension schemes and harmonization of pensionable ages, the Government explains that Schedule 5 to the Social Security Act, 1989, has still not been brought into force following the 1990 ruling of the European Court of Justice (ECJ) in Barber v. Guardian Royal Exchange Group (which, by establishing that occupational pensions are "pay", allowed the equal pay principle to override an apparent exception for retirement occupational pensions contained in a Directive). It adds that it is awaiting the outcome of a series of cases referred to the ECJ, including Coloroll Pension Trustees Ltd. v. Russell, Mangham & Others, expected later in 1994, which will throw further light on the retroactive scope of the Barber decision. The Committee notes the Government's statement that it is committed to equalizing the state pension age and that, following debate of a background paper currently circulating, it plans to make detailed proposals in this direction in the near future. The Committee notes these developments and asks the Government to inform it of the ECJ decision in Coloroll and its decision on whether or not to bring the Schedule into force.

3. Regarding the Government's response to the Equal Opportunities Commission's 1990 review of the Equal Pay Act containing various recommendations to improve the legislation, the Committee notes that it refers to several initiatives: the 1991 meeting of the Employment Department's Advisory Committee on Women's Employment (on which the TUC and the Confederation of British Industry as well as concerned bodies such as the Equal Opportunities Commission itself are represented) which discussed the review; its acceptance of a number of the specific recommendations (specialized training for members of industrial tribunals, their availability to hear cases, common law changes to one aspect of the "material factor" defence, swifter production of experts' reports, scrutiny of collective agreements by individuals now allowed by section 32 of the Trade Union Reform and Employment Rights Act); and its ongoing correspondence with the Equal Opportunities Commission on ways of streamlining the procedures of the Industrial Tribunals in equal pay cases. The Government points out that certain other recommendations "merit further consideration" and that others cannot be commented on since they are sub judice. The Committee notes, however, the Government's explanations that it cannot accept the recommendations concerning removing the bar to claims represented by an employers' job evaluation study, class actions, access to employers' premises, using the Employment Appeals Tribunal as a court of first instance and repeal of the two-year limit on back pay awards.

Recalling its comments under point 1 above on the importance of effective procedures in practice to implement the principle of the Convention, the Committee asks the Government to inform it of developments concerning its acceptance of the Commission's recommendations, in particular any progress made in discussions with the Commission following the Government's letter to that body of 19 July 1993 explaining its stance.

4. The Committee recalls that, in its previous direct request, it had noted that the Equal Opportunities Commission for Northern Ireland had included in its comments on the equal pay legislation a recommendation for equal pay comparisons with a "notional" or "hypothetical" man. The Committee had asked the Government to inform it of any measures taken in response to this. As the Government's report states that detailed consideration of the Northern Ireland Equal Opportunities Commission's recommendations are under way and that a response will be available in the near future, the Committee asks the Government to inform it in its next report of developments in this area.

5. The Committee recalls that, in previous direct requests, it had asked for information on developments following the decision in Clark & Others v. Bexley Health Authority (where the employer successfully relied on the "material factor" defence that it had no choice in the matter of salary because it was obliged by an outside factor to pay staff certain authorized salaries and because of market forces), a decision which had been referred to the ECJ. It notes from the Government's report that the final decision in this case, now known as Enderby v. Frenchay Health Authority, was expected late in 1993. The Committee understands that the ECJ delivered its decision on 27 October 1993, holding, inter alia, that if there is a prima facie case of wage discrimination based on sex, the employer must show objective justification for the difference, that market forces may constitute an objectively justified ground and that it is for the national court to assess whether the statistics relied upon cover sufficient numbers, are not a short-term phenomenon and are generally of significance.

The Committee asks the Government to inform it of the impact of the Enderby decision on equal pay claims in the United Kingdom, supplying copies of any decisions at the national level which show application of the principle of equal pay contained in the Convention.

6. The Committee notes from the statistics supplied in the Government's report that, as of April 1993, women's average hourly earnings (excluding overtime) were 79.1 per cent of men's. This represents an increase over the 1970 figure of 63.1 per cent and the 1980 figure of 73.5 per cent. It also notes from documentation in the TUC's complaint to the ECJ that, according to the New Earnings Survey for 1992, women's average hourly earnings in manual trades were 71.5 per cent of men's, and in non-manual trades, 67.3 per cent of men's. Noting the Government's statement that the wages gap is steadily decreasing and that the remaining disparity exists for a variety of reasons such as the fact that many women work in lower-paying sectors, and have less work experience, seniority and training, the Committee would like to receive information on the measures taken or contemplated to study and remove the reasons underlying the continuing wage differences.