Observation (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

Further to its previous observation, the Committee notes the information supplied by the Government in its report and the comments submitted by the Trades Union Congress (TUC).

1. The Committee notes with interest that the Sex Discrimination and Equal Pay (Offshore Employment) Order 1987, brings within the scope of the Equal Pay Act 1970 employment concerned with the exploration of the sea bed or subsoil or the exploitation of their natural resources. The Committee also notes with interest that in December 1988 the Government introduced new legislation into Parliament with a view to making it unlawful for employers to discriminate directly or indirectly on grounds of sex in connection with employment-related occupational pension schemes. It requests the Government to keep it informed of further developments in this connection.

2. The Committee notes from the Government's report that the Equal Opportunities Commission, which under section 53(1)(c) of the Sex Discrimination Act 1975 is required to keep under review the working of the Equal Pay Act 1970, and which may submit to the Secretary of State proposals for amending it, has issued a consultative document on the working of the Equal Pay Act 1970, entitled "Equal pay: Making it work", putting forward a range of options for improving the procedures for determining individual complaints in the industrial tribunal.

The Committee notes that the consultative document focuses on three broad issues: (i) the inadequacy of the Equal Pay Act to deal with discrimination against groups of workers, (ii) the procedures for determining individual complaints in the industrial tribunals, and (iii) matters arising with regard to substantive law. It makes proposals for changes with respect to multiple claims by groups of workers, individual claims, discriminatory terms in collective agreements, jurisdiction of tribunals, the role of independent experts in equal value claims, and the "material difference" defence under section 1(3) of the Equal Pay Act.

The Committee further notes the comments by the Trades Union Congress in a letter dated 29 January 1990 on the application of the Convention, and relating to the role of independent experts in equal value cases, the material difference defence under section 1(3) of the Act, the issues of class action and collective pay discrimination, discriminatory terms in collective agreements, and the question of finding male comparators for employees in totally female establishments. The TUC states that the comments and proposals put forward by the Equal Opportunities Commission in its consultative document accord very closely with the TUC's own views.

The Committee takes note of the Government's statement that it will consider carefully any firm recommendations that the Equal Opportunities Commission may make following consultations. It requests the Government to include in its next report detailed information on the results of the consultative process carried out by the Commission, on any recommendations it may make, and on the action taken or envisaged thereon by the Government.

3. The Committee recalls the earlier comments by the TUC that the Sex Discrimination Act, 1986, is deficient because it provides no collective means of challenging a discriminatory provision in a collective agreement, no enforcement machinery and no third party to decide on conflicts. It notes the Government's statement at the Conference Committee in 1988 that it sees major problems of principle and practice in providing for "class actions" such as those suggested, and believes that the traditional, established "test case" procedure is best, as employers would not refuse to apply more widely a decision taken on an individual case. This point of view is repeated in the Government's report, which notes that the Equal Opportunities Commission's report addresses the matter. In its most recent comments, the TUC points out the strong criticism by the Commission of the present legislation, noting that it has said that discriminatory terms usually affect groups, but only rarely affect individual women. It also indicates that the pressure that can be exercised by individual cases is not great, and does not provide an incentive to renegotiate discriminatory terms in collective agreements.

The Committee notes the concerns expressed by the TUC and the Equal Opportunities Commission, as well as the difficulties pointed out by the Government in changing fundamental principles of law. It hopes that the Government will be able to indicate in its next report whether, in fact, individual claims successfully brought against provisions of collective agreements have resulted in wider changes being implemented.

4. Further to its previous comments, the Committee notes that the Government has maintained its position that it sees no way in which employees in totally female establishments can compare themselves with men, either notionally employed at the same establishment or actually employed at other non-connected establishments. It notes the comments by the TUC that this should be possible, and that the problem has been solved in other countries. Noting that the Equal Opportunities Commission has also addressed this question, the Committee looks forward to receiving further information in the Government's next report.

5. The Committee is also raising certain other points in a request addressed directly to the Government.