6. WORK
162. Part 5 prohibits discrimination, harassment
and victimisation in the field of employment, occupation and appointment
to public bodies. This Part predominantly re-enacts existing law,
harmonising and clarifying the legislation where appropriate.
Clause 37 extends the provisions of existing law in respect of
sex discrimination and makes an employer liable for harassment
of its employees by third parties, such as customers or clients,
over whom the employer does not have direct control. Liability
in relation to third party harassment will however only arise
when (i) harassment has occurred on at least two occasions, (ii)
the employer is aware that it has taken place, and (iii) the employer
has not taken reasonable steps to prevent it from happening again.[216]
Occupational Requirements
163. Schedule 9 re-enacts and clarifies existing
legislation which sets out exceptions to the prohibition on direct
discrimination. In particular, it defines when an employer may
impose "genuine occupational requirements" in respect
of specific posts (i.e. requirements that an employee possess
or not possess a particular protected characteristic), which are
required to be genuine and a proportionate method of achieving
a legitimate aim. The exceptions set out in Schedule 9 are for
the most part well-established in existing law and the Bill simply
clarifies and harmonises their scope. However, important human
rights issues nevertheless arise in respect of several of these
exceptions.
EMPLOYMENT BY ORGANISATIONS BASED
UPON RELIGION OR BELIEF
164. Where employment is "for the purposes
of an organised religion", Schedule 9(2) allows an employer
to apply a requirement to be of a particular sex, not to be a
transsexual person or to make a requirement related to the employee's
marriage, civil partnership or sexual orientation, but only if
appointing a person who meets the requirement in question is a
proportionate way of complying with the doctrines of the religion;
or, because of the nature or context of the employment, employing
a person who does not meet the requirement would conflict with
the religious beliefs of a significant number of the religion's
followers. This requirement must again be genuine, and constitute
a proportionate way of complying with the doctrines of the religion
or of avoiding conflict with beliefs. In addition, employment
can only be classified as for the purposes of an organised religion
if the employment wholly or mainly involves promoting or explaining
the doctrines of the religion or leading or assisting in the observation
of religious practices or ceremonies. This enables for example
the Catholic Church to require that its priests be men.
165. In the PBC, the Solicitor-General indicated
that Schedule 9(2) re-enacted the existing legislative position
and that there is no narrowing in the definition of the circumstances
when this genuine occupational requirement may be imposed.[217]
However, an express proportionality requirement is inserted into
the text of this exception, reflecting the approach adopted in
Amicus v Secretary of State for Trade and Industry.[218]
166. Schedule 9(2)(8) for the first time inserts
a definition of when employment is "for the purposes of an
organised religion", namely when employment "wholly
or mainly involves (a) leading or assisting in the observation
of liturgical or ritualistic practices of the religion, or (b)
promoting or explaining the doctrine of the religion (whether
to followers of the religion or to others)". In their evidence
to the PBC, the Catholic Bishops' Conference of England and Wales
expressed strong concern that this would unduly narrow the scope
of this exception and limit the "essential" ability
of the Church in filling posts with a pastoral role "to prefer
a candidate whose life is in accordance with its ethos".[219]
167. A wider exception is set out in Schedule
9(3), which again re-enacts existing legislation in permitting
an employer with an ethos based on religion or belief to discriminate
in relation to work by applying a requirement to be of a particular
religion or belief, but only if, having regard to that ethos,
being of that religion or belief is a genuine requirement for
the work and applying the requirement is proportionate so as to
achieve a legitimate aim.
168. In written evidence, the Government set
out the justification for the inclusion of this occupational requirement
exception:
Paragraph 3 of Schedule 9 sets out an occupational
requirement test which covers organisations with an ethos based
on religion or belief: for example, an organisation run by a religious
group, such as a hospice. This provides an additional exception
that organisations with a religious ethos may rely on.
The reason for this additional exception is that it recognises
that religious organisations need to be able to preserve their
religious ethos, and that is why it covers only the religion or
belief strand. This exception is derived from Article 4.2 of the
Equal Treatment Directive [2000/78/EC], which allows a difference
of treatment with regard to employment based on a person's religion
or belief in certain limited circumstances having regard to the
employer's ethos. However, this exception does not apply in relation
to other protected characteristics such as sexual orientation.
Similarly Paragraph 3 covers only religion or belief and not the
other grounds, including sexual orientation.[220]
169. However, this is a limited reading of the
Directive which states that a difference of treatment on the grounds
of religion or belief is only justified where "by reason
of the nature of these activities or of the context in which they
are carried out, a person's religion or belief constitute a genuine,
legitimate and justified occupational requirement, having
regard to the organisation's ethos".[221]
170. We asked the Government whether this genuine
occupational requirement exception could permit employers in certain
circumstances to require employees to adhere to religious doctrine
in their lifestyles and personal relationships. The Government
replied:
It is very difficult to see how in practice beliefs
in lifestyles or personal relationships could constitute a religious
belief which is a requirement for a job, other than for ministers
of religion (and this is covered in paragraph 2 of Schedule 9).
It is perhaps worth noting, however, that if an employee has been
employed on the basis of an occupational requirement to be of
a particular religion or belief and the employee can no longer
be considered to be of that religion or belief e.g. an employee
who has lost faith, then the employer would be able to terminate
employment as the employee would no longer meet the occupational
requirement.[222]
171. The Church of England has suggested that
it is "both logical and necessary" that it should be
possible to impose a requirement that a holder of a post that
comes within the scope of Schedule 9(3) "should not engage
in conduct contrary to the tenets" of the religion in question.[223]
However, the Church considered that the text of Schedule 9(3)
as currently formulated was not "apt" to cover such
a requirement as to personal conduct. However, it remains uncertain
as to whether a requirement to manifest one's religious belief
by avoiding certain forms of behaviour such as homosexual acts
can come within the scope of this exception.
172. The Government in the PBC agreed with the
proposition that discrimination against an employee on the basis
of their sexual orientation was just that and would have to be
justified in those terms and not as a proxy for adherence to religious
belief under a religious exemption.[224]
The Government also agreed with the opinion expressed by the judge
in the Amicus case that sexual orientation includes manifestations
of sexual orientation.[225]
173. A second set of issues in respect of this
exception is raised by the British Humanist Association (BHA).
The BHA supports the clarification of the scope of the two exceptions
set out in Schedule 9(2) and 9(3), and in particular welcomes
the explicit requirement contained in the text of the Bill that
these occupational requirements must only be imposed in circumstances
where they are a proportionate means of achieving a legitimate
aim. However, the BHA expresses concern about the extent to which
certain organisations reserve posts for those who can satisfy
"religious ethos" requirements. The BHA also argues
that an organisation based on religion or belief should not be
able to impose "religious ethos" requirements as defined
in Schedule 9(3) in respect of posts which relate to activities
which the organisation is performing a) on behalf of a public
authority, and b) under the terms of a contract between the organisation
and the public authority.[226]
174. We welcome the clarification in Schedule
9(2) and 9(3) of the circumstances in which occupational requirements
linked to a religious belief or ethos can be imposed by faith-based
organisations and organised religious groups. We accept that some
limitations on non-discrimination on grounds of religion or belief
may be justified and appropriate in relation to religious organisations
and that the exemption in Schedule 9(2) fulfils that role. We
also consider that in general the provisions of Schedule 9(2)
and 9(3) strike the correct balance between the right to equality
and non-discrimination and the rights to freedom of religion or
belief and association, especially if interpreted in line with
the approach set out in Amicus v Secretary of State for Trade
and Industry, which emphasised the need for such exceptions
to the general prohibition on direct discrimination to be "construed
strictly" on the basis that they are "a derogation from
the principle of equal treatment".
175. We consider that substantial grounds
exist for doubting whether the "religious ethos" exception
provided for in Schedule 9(3) permits organisations with a religious
ethos to impose wide-ranging requirements on employees to adhere
to religious doctrine in their lifestyles and personal relationships,
by for example requiring employees to manifest their religious
beliefs by refraining from homosexual acts. We agree with the
Government that it is "very difficult to see how in practice
beliefs in lifestyles or personal relationships could constitute
a religious belief which is a requirement for a job, other than
ministers of religion" (which is covered by a different exception).
This should put beyond doubt the position that the exemption in
Schedule 9(3) cannot be used to discriminate on the basis of sexual
conduct linked to sexual orientation. We support this view and
recommend that this be made clear in the Bill.
176. We are concerned about the status of
employees of organisations delivering public services who find
themselves as employees of organisations with a religious ethos
who have been contracted to provide the public service. They have
a right not to be subjected to religious discrimination on the
basis of the ethos of the contracting organisation if they are
otherwise performing their job satisfactorily. We are concerned
that the widespread use of the "religious ethos" exception
set out in Schedule 9(3) by organisations based on a particular
religion or belief who are contracted to deliver services on behalf
of public authorities could result in public functions being discharged
by organisations in receipt of public funds who are nevertheless
perceived to discriminate on the basis of religion or belief.
ARMED FORCES EXEMPTION
177. Schedule 9(4) allows women and transsexual
persons to be excluded from service in the armed forces if this
is a proportionate way to ensure the combat effectiveness of the
armed forces. It also exempts the armed forces from the work provisions
of the Bill relating to disability and age. This re-enacts existing
legislation, while narrowing the scope of the existing combat
effectiveness exception.
178. The non-applicability of protection against
disability discrimination represents perhaps the most significant
human rights issue here. In our Report on the reservations and
declarations to the UN Convention on the Rights of Persons with
Disabilities, we noted the Government's proposed reservation in
respect of service in the armed forces.[227]
The UK's reservation provides:
The United Kingdom ratification is without prejudice
to provisions in Community law that Member States may provide
that the principle of equal treatment in employment and occupation,
in so far as it relates to discrimination on the grounds of disability,
shall not apply to the armed forces. The United Kingdom accepts
the provisions of the Convention, subject to the understanding
that its obligations relating to employment and occupation, shall
not apply to the admission into or service in any of the naval,
military or air forces of the Crown.
179. We concluded that the Government should
consider removing the existing exemption for service in the armed
forces from the DDA in the Equality Bill and stressed that evidence
should be provided to support any justification provided by the
Ministry of Defence that the existing exemption is necessary.
We stated that we had seen no evidence to support the Government's
position that this exemption is justified and appropriate, other
than the desire expressed by the Ministry of Defence to retain
control over the assessment of fitness for service. We concluded:
In our view, the existing exemption is inconsistent
with the requirements of the Convention and would be subject to
challenge without a reservation. We reiterate our recommendation
that the existing exemption should be reconsidered in the Equality
Bill.
… Given the breadth of the proposed reservation
in respect of service in the armed forces … we consider that
it is open to challenge as being incompatible with the object
and purpose of the Convention.
… If the Government decides to lodge a reservation
in the terms it proposes, or any alternative based on the principle
of combat effectiveness, we recommend that the Government should
commit to keep the reservation under review and undertake to reconsider
the necessity for the reservation within 6 months of Royal Assent
being granted in respect of the forthcoming Equality Bill.[228]
180. On 13 May 2009, the Minister Jonathan Shaw
MP, announced that the Government proposed to ratify the Convention
on 8 June 2009, with the substance of the reservation remaining
the same.[229] The
provisions of Schedule 9(4) re-enact the exemption of the armed
forces from legislative protection against disability discrimination.
181. In its written evidence, the Government
has justified this exemption as follows:
The Armed Forces are called on to perform a wide
range of different tasks and great damage would be done if the
base requirement for physical fitness was abandoned. Personnel
have to meet fitness standards to ensure that they have the fitness
attributes to cope with the physical demands of service in the
Armed Forces such as prolonged working, stressful situations and
arduous environments and that they do not become a liability or
danger to others in an operational environment.[230]
182. We reiterate that the exemption of the
armed forces from the scope of the disability provisions of the
Bill is unnecessary and incompatible with the UN Convention on
the Rights of Persons with Disabilities. It also may give rise
to issues of incompatibility with the ECHR, in particular with
the Article 8 ECHR right to respect for private life combined
with the Article 14 ECHR right to equality and non-discrimination.
We repeat our recommendation that the Government should at least
reconsider the necessity for the reservation within 6 months of
Royal Assent being signified to the Equality Bill.
DEFAULT RETIREMENT AGE
183. Schedule 9(8) to 9(16) re-enact existing
provisions which set out certain circumstances when particular
forms of age discrimination will be deemed to be objectively justifiable.
In particular, Schedule 9(8) and 9(9) allow employers to dismiss
on the grounds of retirement employees at the age of 65 or over
without this being regarded as age discrimination and/or unfair
dismissal. This permits employers to impose a "default retirement
age" of 65 or above without having to demonstrate that this
is proportionate and necessary to achieve a legitimate aim, as
originally provided for in the Employment Equality (Age) Regulations
2006.
184. The Confederation of British Industry (CBI)
has consistently expressed support for the default retirement
age as necessary to enable businesses to conduct effective workforce
planning.[231] In contrast,
Age Concern, Help the Aged, the EHRC and other groups have criticised
the default retirement age provisions as an unnecessary and unjustified
derogation from the principle of age equality.[232]
These provisions were the subject of an unsuccessful judicial
review in the recent case of R (Age UK) v Secretary of State
for Business, Innovation and Skills,[233]
which applied the approach adopted by the European Court of Justice
in R (Age Concern) v Secretary of State for Trade and Industry[234]
that national legislation permitting default retirement ages can
be lawful under European law but must be shown to be objectively
justified. A review of the default retirement age provisions was
initially scheduled for 2011: however, the Government recently
announced in its strategy document Building a Society for all
Ages that it will bring forward the review to 2010.[235]
In his judgment in the Age UK case, Blake J. expressed
serious doubts as to whether the retention of 65 as a default
retirement age would continue to be justifiable in the future
and suggested that the outcome of the case "might have been
different if the Government had not announced its timely review".[236]
185. In our view, there are strong arguments
to suggest that the current statutory provisions governing the
default retirement age unduly restrict the rights of older workers
to equal treatment and non-discrimination. We recognise that employers
have a legitimate interest in workforce planning. However, alternative
methods of workforce planning exist that avoid the age discrimination
inherent in the operation of a default retirement age, such as
the use of performance management techniques and clear job evaluation
and assessment mechanisms. The default retirement age can close
off opportunities for individual self-realisation and is often
perceived by those affected as a denial of their right to equality
which is based on age stereotyping. We welcome the decision of
the Government to bring forward its review of the mandatory retirement
age provisions to 2010 and support the abolition of the default
retirement age in its current form. We strongly urge the Government
to complete its further consultative process with sufficient speed
to enable the default age of retirement at 65 to be removed during
the lifetime of this Parliament.
Equal Pay
186. Chapter 3 of Part 5 essentially re-enacts
and clarifies the existing provisions of discrimination law which
provide for equal pay as between men and women. Despite widely-expressed
concerns about the complexity, adequacy and effectiveness of the
existing equal pay legislation, this legislation introduces very
few substantial reforms in this area. For example, it does not
establish new procedures for providing arbitration in equal pay
disputes nor does it impose positive duties on employers to take
steps to monitor and respond to patterns of pay inequality.
187. In a potentially significant extension of
protection, Clause 68 makes it possible for claimants who are
paid less because of their sex to bring a claim for direct discrimination.[237]
This also appears for the first time to permit hypothetical comparators
to be used to establish the existence of direct sex discrimination
in the area of pay. Michael Rubenstein has argued, this could
make it easier to found a claim of discriminatory undervaluation
of pay or work, which may represent a "major breakthrough
in equal pay law".[238]
However, hypothetical comparators cannot be used to establish
equal pay claims that do not involve claims of direct sex discrimination:
the definition of "colleagues" in Clause 76, which establishes
the relevant comparators for equal pay claims which do not involve
direct discrimination, do not permit their use. The EHRC has called
for the use of hypothetical comparators to also be permitted in
indirect discrimination claims.[239]
188. Combined with the absence of positive duties
to monitor and act upon patterns of pay inequality, it is difficult
to use equal pay legislation to challenge patterns of unequal
pay linked to "occupational segregation", the clustering
of women in particular categories of low-paid jobs, as finding
male comparators in such circumstances often proves difficult.
In July 2008, the UN Convention on the Elimination of Discrimination
Against Women's (CEDAW) monitoring Committee published its most
recent Report ("Concluding Observations") on the UK's
compliance with CEDAW. The CEDAW Committee expressed particular
concern about "the persistence of occupational segregation
between women and men in the labour market and the continuing
pay gap, one of the highest in Europe". It recommended that
the UK "take proactive and concrete measures to eliminate
occupational segregation and to close the pay gap between women
and men, including through the introduction of mandatory pay audits".[240]
189. We welcome the clarification of equal
pay law and the provisions of Clause 68, which for the first time
make it possible to bring a claim for direct sex discrimination
when a person is paid less because of their sex. However, in general,
we consider that the equal pay provisions of the Bill represent
a wasted opportunity to enhance protection against gender inequality
by clarifying and improving a complex and increasingly outmoded
area of law. The current structure of equal pay legislation, which
the Bill re-enacts in a largely unchanged manner, appears increasingly
unable to cope with the complexity of equal pay claims. The existing
equal pay framework also struggles to address issues of occupational
segregation, identified by the CEDAW Committee as a persistent
problem which contributes greatly to the size of the pay gap between
men and women in the UK.
190. In particular, we consider that the equal
pay provisions would benefit from the establishment of new arbitration
mechanisms, the introduction of positive duties upon employers
in certain circumstances to take steps to monitor and respond
to patterns of pay inequality, and the amendment of Clause 76
to permit the use of hypothetical comparators in all equal pay
claims. These measures would constitute the type of "proactive
and concrete" steps recommended by the CEDAW Committee as
necessary to eliminate patterns of occupational segregation and
to close the pay gap between men and women.
191. Some changes to existing legislation introduced
by the Bill are intended to ensure greater transparency about
pay. Clause 74 protects people who discuss their pay with colleagues
or former colleagues with a view to finding out if differences
exist that are related to a protected characteristic, by providing
that any action taken against them by the employer as a result
of doing so will be treated as victimisation. In addition, terms
of employment or appointment that prevent or restrict people from
disclosing their pay to their colleagues are made unenforceable
to the extent that they would prevent or restrict such a discussion.
192. We welcome the protection provided by
Clause 74 of the Bill against victimisation of employees who discuss
their pay with colleagues with a view to finding out if differences
exist that are related to a protected characteristic. This should
help ensure greater transparency about pay and protect employees
who choose to investigate whether they are discriminated against
in their work remuneration. However, this protection is confined
to discussions with colleagues and former colleagues, and does
not appear to extend to cover discussions with trade union officials
who are not work colleagues, journalists or others whom an employee
might wish to approach to discuss issues of pay equality. We consider
that in the interests both of securing greater transparency about
pay and to protect freedom of expression, the protection provided
by Clause 74 should be extended to all discussions about pay that
are directed towards finding out whether differences exist that
are related to a protected characteristic. Amendment NC17,
tabled by Lynne Featherstone MP and Dr Evan Harris MP, extends
protection against victimisation for discussions about equal pay
with third parties. We consider that this amendment deserves
serious consideration.
193. Clause 75 enables a Minister of the Crown
to make Regulations requiring private sector employers with at
least 250 employees in Great Britain to publish information about
the differences in pay between their male and female employees.
The Regulations may specify, among other things, the form and
timing of the publication (which must be no more frequently than
annually), as well as penalties for non-compliance. Employers
who do not comply with the publication requirements could face
civil enforcement procedures or be liable for a criminal offence,
punishable by a fine of up to £5,000. The Explanatory Notes
state that the Government does not intend to make Regulations
under this power before April 2013.[241]
194. We welcome Clause 75, which enables Ministers
to require employers with large workforces to publish information
on gender pay gaps that may exist. This is an example of the type
of "proactive measure" identified by the CEDAW Committee
as necessary to address the problems of occupational segregation
and the considerable gender pay gap, even if such a requirement
would fall short of a positive duty to take measures to address
any gaps that are identified. For Clause 75 to be effective,
it should require the Minister to make regulations about mandatory
pay audits. As it stands, the power under Clause 75 will be exercised
only if there has been insufficient voluntary publication by employers
by 2013. This unnecessarily delays making the changes that are
needed to address the gender pay gap. Furthermore, the Bill fails
to indicate how much detail employers will be required to publish.
Instead, this is to be decided after the publication by recommendations
by the EHRC. Therefore the Bill provides no certainty that employers
will be required to publish information in sufficient detail to
address the gender pay gap. We recommend that the Bill should
include a wider power than in Clause 75(1) for Ministers to make
regulations about mandatory pay audits.
195. Amendment NC3, tabled by Lynne Featherstone
MP, Dr Evan Harris MP and John McDonnell MP for Report Stage,
makes provision for the Secretary of State to make regulations
requiring employers with a workforce of more than 100 employees
to conduct a pay audit and to publish information relating to
the pay of its employees for the purpose of showing whether there
are differences in the pay of male and female employees. The amendment
also makes provision for the Secretary of State to adopt international
best practice as set out by the International Labour Organisation
(ILO) and to consult with the EHRC in framing these regulations.
Amendment NC5, tabled by Lynne Featherstone MP and Dr Evan Harris
MP for Report Stage, makes provision for hypothetical comparisons
to be made in equal pay cases. We consider that both amendments
deserve serious consideration.
196. Clause 66 clarifies the defence of "material
factor" that employers can avail themselves of under existing
anti-discrimination law. This defence applies where two colleagues
of the opposite sex perform work of equal value but receive different
rates of remuneration. An employer can escape liability if they
can show that "the difference in terms is due to a material
factor which is relevant and significant and not simply because
one is male and the other female".[242]
The Explanatory Notes explain that if there is evidence that the
"factor that explains the difference in terms is indirectly
discriminatory on grounds of sex, then the employer must show
that this factor is applied as a proportionate means of meeting
a legitimate aim".[243]
Clause 66(3) specifies that the "long-term objective of reducing
inequality between men and women's terms of work is always to
be regarded as a legitimate aim", a provision inserted in
response to recent case-law controversies about the discriminatory
impact of pay agreements designed to establish a gradual transition
to equal pay conditions.
197. The Explanatory Notes set out the scope
of this important defence as it is widely understood to have been
developed in the relevant case-law.[244]
However, the statutory wording of Clause 66(1)(a) appears to suggest
that an employer will not have to show that the application of
the factor in question was objectively justified even if there
is evidence that it is causing disadvantage to women as a group
if it can be shown that the difference in treatment is not based
on a "difference of sex", a phrase which appears to
be understood as only covering direct sex discrimination. This
is the interpretation of the defence adopted by the Court of Appeal
in Armstrong v Newcastle upon Tyne NHS Hospitals Trust.[245]
However, the interpretation has been criticised by some discrimination
law experts as incompatible with the decision of the European
Court of Justice in Enderby v Frenchay Health Board Authority[246]
and as weakening protection against discrimination in pay.[247]
Michael Rubenstein, for example, argues that the better view of
the defence is that an employer can escape liability for unequal
pay for equal work only a) if it can be shown that no direct discrimination
is involved and b) any disparate adverse impact can be
shown to be objectively justified in line with the standard proportionality
test: in contrast, the test set out in Clause 66(1)(a) appears
to suggest that an employer can escape liability if either
of these tests are satisfied.[248]
198. In response to an amendment seeking to clarify
this issue in the PBC, the Solicitor-General suggested that there
was little difference between the two interpretations.[249]
In contrast, Michael Rubenstein suggests that the difference is
potentially of considerable significance, given that the "great
majority of current equal pay claims are based on indirectly discriminatory
aspects of the pay system",[250]
including many claims that arise as a result of occupational segregation
such as Enderby v Frenchay Health Board Authority
itself.
199. We welcome the clarification of the "material
factor" defence in Clause 66 and the provision that "the
long-term objective of reducing inequality between men's and women's
terms of work is always to be regarded as a legitimate aim".
However, we consider that further clarification of the scope of
this defence is necessary. In particular, we consider that Clause
66 should be amended to make clear that the phrase "difference
of sex" includes both direct discrimination and indirect
discrimination which is not objectively justified. In addition,
Clause 66 should be amended to clarify that while the initial
burden of proof may rest on the claimant challenging the application
of the material factor defence to show that particular disadvantage
exists (i.e. to show the existence of a disparate adverse impact
on the relevant group of female or male employees), the burden
if the claimant succeeds shifts to the respondent, who must then
justify what would otherwise be unlawful direct sex discrimination.
This will ensure that UK law complies with the case-law of the
ECJ in this area and remains capable of addressing equal pay claims
that arise out of patterns of occupational segregation. Amendment
NC6, tabled by Lynne Featherstone MP and Dr Evan Harris MP for
Report Stage, would clarify the scope of the defence of material
factor to this effect. We consider that this amendment deserves
serious consideration.
200. Concerns also exist that Clause 61 of the
Bill fails to reflect existing equal pay law by using the term
"colleague" to describe persons with whom an equal pay
comparison may be made. Case-law such as the decision of the ECJ
in Macarthys Limited v Smith[251]
makes it clear that comparisons may also be made with persons
who previously held the claimant's post and that a comparison
may be made with persons who are contemporaneously employed by
the same employer as the claimant. We consider that Clause
61 should be clarified to make it explicit on the face of the
Bill that equal pay comparisons can be made with persons who are
not contemporaneously employed by the same employer as the claimant.
216 See paragraph 100 above. Back
217
PBC Deb, 23 June 2009, cols 453-454. Back
218
[2004] EWHC 860 (Admin), Richards J. Back
219
PBC, Memorandum submitted by the Catholic Bishops' Conference
of England and Wales (E14). Back
220
Ev 67 at Q 38 Back
221
Our emphasis. Back
222
Ev 67 at Q 37 Back
223
Ev 180, para. 31 Back
224
PBC Deb, 16 June 2009, cols 230-231 Back
225
PBC Deb, 16 June 2009, col 239 Back
226
Ev 99 Back
227
Twelfth Report of Session 2008-09, UN Convention on the Rights
of Persons with Disabilities: Reservations and Interpretative
Declarations, HL Paper 70, HC 397. Back
228
Twelfth Report of Session 2008-09, UN Convention on the Rights
of Persons with Disabilities: Reservations and Interpretative
Declarations, HL Paper 70, HC 397, paras. 55-57. Back
229
13 May 2009, col 58WS. Back
230
Ev 67 at Q 39 Back
231
For a detailed statement of the CBI's concerns about the potential
consequences of employers no longer being able to fix normal retirement
ages, see the CBI Response to Equality and Diversity: Age Matters,
October 2003, paras. 8-32. Back
232
See e.g. EHRC, Submission to the Equality Bill Committee (E18),
para. 24. Back
233
[2009] EWHC 2336 (Admin). Back
234
Case C-388/07, [2009] IRLR 373. Back
235
Building a Society for All Ages, Cm 7655, July 2009. Back
236
[2009] EWHC 2336 (Admin), para. 130. Back
237
Previously, claimants in this position could only bring a claim
under the more restrictive equal pay legislation. Back
238
Equal Opportunities Review 190, July 2009, p. 34. Back
239
EHRC, Submission to the Equality Bill Committee (E18), para. 29. Back
240
Concluding Observations of the Committee on the Elimination of
Discrimination Against Women: United Kingdom of Great Britain
and Northern Ireland, CEDAW/C/GBR/CO/6, July 2008, paras. 39-40. Back
241
EN, para. 263. Back
242
EN, para. 225. Back
243
EN, para. 226. Back
244
EN, paras 225-230. Back
245
[2006] IRLR 124. Back
246
Case C-127/92, [1993] IRLR 591 ECJ. Back
247
Rubenstein, M., Equal Opportunities Review 190, July 2009,
p. 33. Back
248
Rubenstein, M., Equal Opportunities Review 190, July 2009,
p. 33. Back
249
PBC Deb, 23 June 2009, cols 394-5. Back
250
Rubenstein, M., Equal Opportunities Review 190, July 2009,
p. 33. Back
251
Case 129/79, [1980] ECR 672. Back
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