Despite having had equal pay legislation for many years, women are still having to bring long and complex claims - such as the case of Allonby v Accrington and Rossendale College & Ors (IDS Brief 750), which has just been heard by the European Court of Justice (ECJ).
It decided that a woman can't rely on European equal pay legislation if her comparator works in the same 'establishment', but for a different employer. It also said that a woman who is excluded from an occupational pension scheme because of indirect discrimination, can turn to EC law, whether or not she has a comparator.
What was Ms Allonby's equal pay claim about?
Ms Allonby, who worked for the college through an agency, claimed that under the Equal Pay Act she should be paid at the same rate as the lecturers employed by the college. Her income was less than that of a male lecturer because part of her pay went to the agency as their fee.
But the Court of Appeal said she couldn't make that comparison because they had different employers, despite the fact that both of them worked at the same establishment.
So Ms Allonby then argued that the Equal Pay Act didn't comply with Article 141 of the EC Treaty, which says that men and women doing the same job at the same place, should be paid the same. And, she argued, she should be able to compare herself with a man, irrespective of his employer.
And what was her pensions claim?
Ms Allonby also claimed that because she had been employed by the college between 1990 and 1996 (when her contract was terminated), that she had unlawfully been denied access to the pension scheme since then.
She said that because she could rely directly on Article 141, the pension scheme rule that excluded contract workers amounted to indirect discrimination against women and should be set aside. She should therefore be allowed to join, whether or not she could identify an appropriate comparator.
What did the Court of Appeal ask the ECJ?
So the Court of Appeal put three basic questions to the ECJ:
1. Are two people working in the same establishment (or service), but for different employers, nevertheless working in the same 'employment' as far as Article 141 is concerned?
2. As Article 141 has direct effect on the college, was Ms Allonby entitled to join the pension scheme by comparing her circumstances to that of her male comparator?
3. And was she entitled to join the scheme, irrespective of whether she had a comparator, if she could show that significantly more women than men were excluded by the rule about contract workers?
What did the ECJ decide on question one?
In answer to question one, the ECJ said that your comparator doesn't have to be working for the same employer as you. But it added that where you can't pin down the difference in pay to one particular source, then you can't rely on Article 141 to help you.
In other words, because the college paid the agency a fee for Ms Allonby's services there was no 'single source' to which the difference between her pay and that of her comparator could be attributed.
And what about questions two and three?
The ECJ said that Ms Allonby could not compare herself with a man to claim membership of the pension scheme. But, it added, that if she is trying to challenge a discriminatory rule that is based in national law, she can rely on statistical evidence to show a different impact on men and women.
And if she was able to show that it was indirectly discriminatory, then that would be binding not only on the Secretary of State responsible for the statistical rule, but also on the private employer - in this case, the college.