In this class, we will examine the policy background to discrimination law,
some of the conceptual tensions that make it a difficult area of law, and
the interlinked set of European (EU & ECHR) and UK legal norms that
make up our current (i.e. moment of Brexit) framework of equality law.
The class sub-topics are as follows:
1. The policy context
2. Concepts/Models of Equality
3. Elements of EU anti-discrimination law in the employment context
4. Elements of UK anti-discrimination law in the employment context
5. The ECHR
1. THE POLICY CONTEXT
a. Pay gaps
‘The gender pay gap has been declining slowly in recent years. Among
full-time employees it now stands at 8.9%, little changed from 2018 when
it was 8.6% (not a statistically significant increase). The figure for 2019
represents a decline of 3.3 percentage points from a decade ago – 12.2%
in 2009 – but only 0.6 percentage points since 2012…
The gender pay gap is higher for all employees than for each of full-time
employees and part-time employees. This is because women fill more
part-time jobs, which have lower hourly median pay than full-time jobs,
and are more likely to be in lower-paid occupations…
Although the estimated gender pay gap among full-time employees in
2019 was no lower than in 2018 (the estimate was 8.9% compared with
8.6% in 2018), it declined in seven of the nine main occupation groupings.
This is one example of the complex nature and interaction of multiple
factors that influence the gender pay gap.
An increase in the gender pay gap among the high-paying managers,
professionals and senior officials occupation group (from 13.9% to 15.9%)
had an effect on the gap, but so too did certain other changes in full-time
employment profiles from 2018 to 2019…
The proportion of employees who held full-time jobs rather than part-time
jobs increased more for women than men, but new entrants or returners
to full-time jobs are likely to start from a lower pay level and may reduce
average pay for full-time women employees. The three occupations that
,saw the largest increase in the proportion of full-time employee jobs held
by women were: sales and customer service, elementary occupations and
process, and plant and machine operatives; these all have a lower than
average rate of hourly pay and will reduce the average full-time earnings
among women…’
(Office of National Statistics, 2019 – The Gender Pay Gap – data available
in full at
https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/
earningsandworkinghours/bulletins/genderpaygapintheuk/2019)
b.Occupational segregation
“Occupational segregation” is the term used to describe the fact that
women and men tend to do different jobs.
Horizontal segregation: refers to the concentration of women and men
into different types of occupations; for example men in agriculture,
engineering, construction; and women in health care, cleaning, catering
and other service sector related jobs, which are usually found at lower
levels of industry and attract lower rates of pay. In general, women are
more concentrated in lower-paying occupations than men
Vertical segregation: describes how, within the same occupation,
women are concentrated lower down the salary range; for example the
vast majority of those in clerical occupations are women, yet over 80% of
higher paid clerical positions are occupied by men.
‘Women tend to be paid less then men within occupations, not climbing
the career ladder to the same degree as men. This is known as vertical
segregation and the barriers to moving up in a profession are also
referred to as the “glass ceiling”.’
Women and Work Commission, Shaping a Fairer Future, February 2006,
Department of Trade and Industry, www.dti.gov.uk, at p 11
c. Discrimination
There have been numerous reports commissioned by the UK government,
and at EU level on women and work and on unequal pay in particular. In
2001, the Equal Opportunities Commission in the UK published a report of
the Equal Pay Task Force, which had investigated the causes of unequal
pay. The Equal Pay Taskforce concluded that there were three main
factors which contributed to the gender pay gap:
occupational segregation,
the unequal impact of women’s family responsibilities
and pay discrimination.
, but the focus of concern was discrimination; the Taskforce believed that
this accounted for between 25% and 50% of the pay gap: see Equal Pay
Taskforce, Just Pay: Report of the Equal Pay Task Force, Equal
Opportunities Commission, 2001: 2.
This data is now over 20 years old, but there is wide recognition that
discrimination remains an active social problem. The existence of
embedded structural patterns of discrimination, taken together with the
desire to combat irrational stereotyping and other forms of morally
unjustified unequal treatment, has driven the expansion of discrimination
law within the employment context. However, considerable debate
remains as to what exactly should be the goal of such law, and what
particular ‘vision’ of equality should motivate its development.
CONCEPTS / MODELS OF EQUALITY
Competing conceptions of the concept of equality.
Equality is a concept that can receive different interpretations. There is a
tension at the root of anti-discrimination law, arising from competing
views as to the nature of equality which law can or should achieve. There
are at least three models of equality which inform legal provisions.
first, there is the ‘equal treatment’ or ‘formal equality’ model,
based on the starting point of equality of individuals. If all human
beings are equal or similar, then they should be treated similarly – and
group stereotyping should be avoided. Another way of describing this
conception is to think of equality as meaning consistency, flowing from
the Aristotelian idea that likes should be treated alike;
In contrast, both the second and third models both aim to achieve a type
of substantive equality, which is often directed towards eliminating
disadvantage faced by groups rather than remedying unfair treatment of
individuals as such.
some of the conceptual tensions that make it a difficult area of law, and
the interlinked set of European (EU & ECHR) and UK legal norms that
make up our current (i.e. moment of Brexit) framework of equality law.
The class sub-topics are as follows:
1. The policy context
2. Concepts/Models of Equality
3. Elements of EU anti-discrimination law in the employment context
4. Elements of UK anti-discrimination law in the employment context
5. The ECHR
1. THE POLICY CONTEXT
a. Pay gaps
‘The gender pay gap has been declining slowly in recent years. Among
full-time employees it now stands at 8.9%, little changed from 2018 when
it was 8.6% (not a statistically significant increase). The figure for 2019
represents a decline of 3.3 percentage points from a decade ago – 12.2%
in 2009 – but only 0.6 percentage points since 2012…
The gender pay gap is higher for all employees than for each of full-time
employees and part-time employees. This is because women fill more
part-time jobs, which have lower hourly median pay than full-time jobs,
and are more likely to be in lower-paid occupations…
Although the estimated gender pay gap among full-time employees in
2019 was no lower than in 2018 (the estimate was 8.9% compared with
8.6% in 2018), it declined in seven of the nine main occupation groupings.
This is one example of the complex nature and interaction of multiple
factors that influence the gender pay gap.
An increase in the gender pay gap among the high-paying managers,
professionals and senior officials occupation group (from 13.9% to 15.9%)
had an effect on the gap, but so too did certain other changes in full-time
employment profiles from 2018 to 2019…
The proportion of employees who held full-time jobs rather than part-time
jobs increased more for women than men, but new entrants or returners
to full-time jobs are likely to start from a lower pay level and may reduce
average pay for full-time women employees. The three occupations that
,saw the largest increase in the proportion of full-time employee jobs held
by women were: sales and customer service, elementary occupations and
process, and plant and machine operatives; these all have a lower than
average rate of hourly pay and will reduce the average full-time earnings
among women…’
(Office of National Statistics, 2019 – The Gender Pay Gap – data available
in full at
https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/
earningsandworkinghours/bulletins/genderpaygapintheuk/2019)
b.Occupational segregation
“Occupational segregation” is the term used to describe the fact that
women and men tend to do different jobs.
Horizontal segregation: refers to the concentration of women and men
into different types of occupations; for example men in agriculture,
engineering, construction; and women in health care, cleaning, catering
and other service sector related jobs, which are usually found at lower
levels of industry and attract lower rates of pay. In general, women are
more concentrated in lower-paying occupations than men
Vertical segregation: describes how, within the same occupation,
women are concentrated lower down the salary range; for example the
vast majority of those in clerical occupations are women, yet over 80% of
higher paid clerical positions are occupied by men.
‘Women tend to be paid less then men within occupations, not climbing
the career ladder to the same degree as men. This is known as vertical
segregation and the barriers to moving up in a profession are also
referred to as the “glass ceiling”.’
Women and Work Commission, Shaping a Fairer Future, February 2006,
Department of Trade and Industry, www.dti.gov.uk, at p 11
c. Discrimination
There have been numerous reports commissioned by the UK government,
and at EU level on women and work and on unequal pay in particular. In
2001, the Equal Opportunities Commission in the UK published a report of
the Equal Pay Task Force, which had investigated the causes of unequal
pay. The Equal Pay Taskforce concluded that there were three main
factors which contributed to the gender pay gap:
occupational segregation,
the unequal impact of women’s family responsibilities
and pay discrimination.
, but the focus of concern was discrimination; the Taskforce believed that
this accounted for between 25% and 50% of the pay gap: see Equal Pay
Taskforce, Just Pay: Report of the Equal Pay Task Force, Equal
Opportunities Commission, 2001: 2.
This data is now over 20 years old, but there is wide recognition that
discrimination remains an active social problem. The existence of
embedded structural patterns of discrimination, taken together with the
desire to combat irrational stereotyping and other forms of morally
unjustified unequal treatment, has driven the expansion of discrimination
law within the employment context. However, considerable debate
remains as to what exactly should be the goal of such law, and what
particular ‘vision’ of equality should motivate its development.
CONCEPTS / MODELS OF EQUALITY
Competing conceptions of the concept of equality.
Equality is a concept that can receive different interpretations. There is a
tension at the root of anti-discrimination law, arising from competing
views as to the nature of equality which law can or should achieve. There
are at least three models of equality which inform legal provisions.
first, there is the ‘equal treatment’ or ‘formal equality’ model,
based on the starting point of equality of individuals. If all human
beings are equal or similar, then they should be treated similarly – and
group stereotyping should be avoided. Another way of describing this
conception is to think of equality as meaning consistency, flowing from
the Aristotelian idea that likes should be treated alike;
In contrast, both the second and third models both aim to achieve a type
of substantive equality, which is often directed towards eliminating
disadvantage faced by groups rather than remedying unfair treatment of
individuals as such.
