The Sex Discrimination (Gender Reassignment) Regulations 1999
From 1 May 1999 both the Sex Discrimination Act 1975 and Equal Pay Act 1970 have been amended to protect transsexuals from discrimination. This follows the case of P v S [1996] IRLR 347 in the European Court of Justice. Discrimination because of gender reassignment was in breach of the Equal Treatment Directive even if it was not outside the Sex Discrimination Act as had been found by the Employment Tribunal.
The regulations cover people who intend to undergo, are undergoing or have undergone gender reassignment. Where absences are due to gender reassignment a comparison can be made with treatment of sickness or other absences to establish whether the employer's treatment is on grounds of transsexual discrimination. The regulations also expand the categories of the defenceof a 'genuine occupational qualification' which can justify what would otherwise be unlawful discrimination for transsexuals cases.
Race discrimination and equal pay
Wakeman and others v Quick Corporation
18 February 1999 EATRF 98/0076/3, reported IDS Brief 636
Pay, contractual terms and treatment issues are all covered by the Race Relations Act. There is no separate Equal Pay Act as for sex discrimination.
Possibly as a result, race discrimination in pay rates is sometimes overlooked. Yet at all levels black peoples' pay, on average, lags behind that for white workers.
Whether equal pay principles can be imported into the Race Relations Act 1976 has been addressed by the Court of Appeal. Mr Wakeman and his white, non-Japanese colleagues worked for the Quick Corporation, a Japanese company providing international financial information to its clients. The Corporation's head office was based in Tokyo.
Its London base, where Mr Wakeman and his colleagues worked, employed locally recruited London based staff, and also employees seconded from Japan to the London office. There was a substantial difference between the pay packages of the two categories of staff, with the seconded employees earning well over double the pay of their locally based equivalents.
The appellants brought proceedings under the Race Relations Act alleging unfair dismissal, race discrimination in relation to promotion and pay, and victimisation. The sole issue before the Court of Appeal concerned the pay claim, with the staff maintaining that the Employment Tribunal had been wrong to reject their arguments that they had been directly discriminated against on the grounds of race in relation to their pay levels.
The original tribunal had found against the staff on the basis that the Applicants had not proved that the difference in pay was caused by their race. They also said that in making the necessary comparison between the London based, lower paid appellants, and the Japanese seconded staff, the appellants were not comparing like with like - "the relevant circumstances in the one case are the same, or not materially different, in the other." The Tribunal accepted Quick Corporation's evidence that the reason for the differential was due to such factors as the additional expenses required by the secondees in relation to short term accommodation in London, continuing home-based expenditure, additional social and educational needs, and an incentive to encourage the Tokyo based staff to agree to the secondment.
None of these factors applied to the locally based appellants, and accordingly it was not possible to compare like with like. There was therefore no basis on which to proceed to the comparison exercise of comparing the treatment of the two groups.
Before the Court of Appeal, it was argued on behalf of the staff that it was not adequate to reject the claims out of hand on these grounds: instead an analysis had to be made of each element of the respective pay packages. It was only by doing this that one could isolate the various elements and assess whether they were properly justified, and also establish what the true "rate for the job" was.
By analogy with the Equal Pay Act 1970, and associated European laws, the staff argued, that it was only by analysing the pay packages in this way that any discrimination in the pay levels could be identified.
This argument was conclusively rejected by the Court of Appeal. In a unanimous decision, the Court decided that there was no requirement in the Race Relations Act to break down pay packages in this way in this particular case.
Although in many cases it might be necessary to "disaggregate" pay elements, it was not a necessary requirement under the Act. It was a quite legitimate for the tribunal to conclude that, looking at the packages as a whole, no comparison should be made between locally based staff and seconded staff, simply because it was not comparing like with like.
It is interesting to speculate on the extent to which a different conclusion might have been reached had the case been proceeding under the Equal Pay Act. However, that is an academic exercise.