Equality, diversity and human rights
In Pointon v The University of Sussex [1979] IRLR 119 CA, the Court of Appeal held that the appellant's claim under the Equal Pay Act could not be sustained because there was no term in her contract of employment that was less favourable than the equivalent term in the contract of the man with whom she was comparing herself.
In Dance v Dorothy Perkins Ltd [1978] ICR 760 EAT, the Employment Appeal Tribunal upheld a decision that female warehouse selectors were not engaged on like work with male warehouse operators. The men did significant additional duties to those done by the women.
In Ahmad v Inner London Education Authority [1977] ICR 490 CA, the Court of Appeal held that the right to freedom of thought, conscience and religion established by Article 9 of the European Convention on Human Rights does not entitle an employee to be absent from work for the purpose of religious worship in breach of contract.
Rules which lay down standards of dress and appearance for both women and men are unlikely to constitute unlawful discrimination on grounds of sex, even if they impose different requirements on women (such as prohibition on wearing trousers) than on men, based on the difference in sexes. This is the principle which emerges from the recent EAT case of Schmidt v Austicks Bookshops.
In the same way that the EAT's interpretations resuscitated the Equal Pay Act, recent decisions would now appear to be giving the Sex Discrimination Act a new lease of life. In Price v The Civil Service Commission and Steel v The Post Office, the EAT takes the same broad, commonsense approach to the indirect discrimination provisions of the Sex Discrimination Act that it has to the like work provisions of the Equal Pay Act.
That men employed on like work with women are in a special "red-circled" category does not automatically provide a defence to a claim for equal pay on grounds that the variation in pay is genuinely due to a material difference, other than the difference of sex, between the men's case and that of the women. This is the major principle established by the EAT in a joint judgment in respect of two "red-circling" appeals - Snoxell and Davies v Vauxhall Motors Ltd and Charles Early & Marriott (Witney) Ltd v Smith and Ball.
Although to date the EAT has not dealt with many cases under the job evaluation provisions of s.1(2)(b) and s.1(5) of the Equal Pay Act, and thus there is little guidance on the issues involved, the recent case of Eaton Ltd v Nuttall throws some useful light on this area.
In Defrenne v Sabena (No.2) [1976] ECR 455 ECJ, the European Court of Justice held that member states are bound to ensure and maintain the principle of equal pay for equal work as enshrined in Article 119 of the Treaty of Rome. It also held that in cases of direct discrimination, whether by the actions of public authorities or not, Article 119 is directly applicable to national law and gives rise to rights that national courts must protect.
In the Capper Pass v Lawton, the EAT hold that in determining whether a woman and a man are employed on broadly similar work, Industrial Tribunals should disregard "trivial differences or differences not likely in the real world to be reflected in terms and conditions of employment". And in Dugdale and others v Kraft Foods Ltd, the EAT hold that the time that the work is performed should also be disregarded when considering whether jobs constitute like work within the s.1(4) definition.
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