European University Institute
Department of Law
Thesis Entitled
The Circulation, Use and
Conceptualization of
European Sex Equality N orm s:
a comparative analysis.
Subm itted by Cbiire Kilpatrick to
?rofessor Brian Bercusson, University of Manchester (co-supervisor) Professor Bob Hepple, University o f Cambridge * Professor Antoine Lyon-Caeo, University of Paris X Nantcrre
Professor Silvana Sciarra, European University Institute (co-supervisor) Profit sor Spiros Simitis, University o f Frankfurt
EUROPEAN UMVERSITY INSTITUTE
3 oooi 0025 916« 5
European University Institute
Department of Law
Thesis Entitled
The Circulation, Use and
Conceptualization of
European Sex Equality Norms
a comparative analysis.
Submitted by Qaire Kilpatrick to
Professor Brian Bercusson, University of Manchester (co-supervisor) Professor Bob Hepple, University of Cambridge
Professor Antoine Lyon-Caen, University of Paris X Nanterre
Professor Silvana Sciarra, European University Institute (co-supervisor) Professor Spiros Simitis, University of Frankfurt
with a view to obtaining the Doctoral Degree in Laws
£oiS.f
•
LAW Grs9 KIL
Acknowledgements
This thesis had * at times - a seemingly interminable gestation period. The fact that it has finally emerged in some sort of recognizable shape or form is due to the help and support of very many people. I would like to thank both my supervisors, Professor Brian Bercusson and Professor Silvana Sciarra for their assistance, insights and forebearance in dealing with many unwieldy drafts Special thanks must alsc go to Annie Junter-Loiseau for discussing many issues on French equality law, to Sylvaine Laulom for answering many of my queries about French labour law, to Antonio Lo Faro for many discussions about the notion of equality in Italian labour law, to Julia Sohrab for invaluable discussions about discrimination law and her very helpful comments on earlier drafts of many of the chapters, and to Donald Nicolson for his painstaking editorial work on every single line of this thesis.
Earlier versions of pans of this thesis have benefitted from comments from participants in various seminars, projects and conferences. I would like to thank Silvana Sciarra and all those who participated in her lively seminars for giving me the opportunity to present my work in progress Thanks must also go to those who attended the ECPR in Madrid in 1994 and the conference on childcare within the context of the European Forum in 1995. I also owe a debt of gratitude to those participating in the project on ‘EC Labour Law and the National Courts’ for giving me feedback on night work and dialogue issues. Staff at the University of Kent gave me encouraging and helpful criticism on positive action in March 1997 and a long discussion with Chris McCrudden on the meaning of equality helped clarify many issues. I would also like to thank Evie Zaccardelli, Susan Garvin, Emir Lawless, Machteld Nijsten and Cathy Rogers for their cheerful and unstinting help in making this thesis a finished product.
Writing a thesis is as much to do with endurance and keeping up the spirits as anything else. Many people helped make the duration of this thesis a very happy and memorable period and even made the Casale or the Sala Terminali seem like an interesting place to spend 12 hours a day on a regular basis Particular thanks must go to Silvia, Jonathan, Andres, Freddy, Peter, Antonio, Sylvaine, Sally, Angela, Julia, Miguel, Luigi, Piera, Anna, Louis and Eugene. I would like to specially thank my parents and all my brothers for putting up with not seeing me very much and being supportive throughout this long period Last but not least, I would like to thank Donald for all his support and intensive care, particularly in the closing stages of this thesis. I look forward to continuing my life with all these friends in a post-thesis world.
Contents
Introduction
1
Chapter 1 - Legislative Maps 12
1. United Kingdom 12
1.1 The two acts 12
1.2 The principle of symmetry 13 1.3 Equal Pay Act: basic design 13 1.4 Sex Discrimination Act: basic design 14 1.4.1 Individual enforcement 14 1.4.2 Institutional enforcement 16
1.4.3 Exceptions 17
2. France 19
2.1 Equals rights and non-discrimination 19 2.1.1 Art.L.123 c.trav. 20 2.1.2 Art.L.140 c.trav. 21 2.1.3 Equal opportunities 22
2.1.3.1 Informational requirements 22
2.1.3.2 Temporary 'catch up measures ’ 24
2.1.3.3 Employment equality plans 25
2.1.4 Employees of nationalised enterprises and public servants 26 3. European Community 28 3.1 Relative positioning 30 3.2 Design and content 31 3.2.1 Definitions of equality and discrimination 31
3.2.2 Scope 32
3.2.2.1 Material Scope 32
3.2.2.2 Personal Scope 33
3.2.2.3 Exceptions 33
4. Conclusion 35
Chapter 2 - Effective Utilisation of Equality Rights: equal pay for work of equal
value in France and the UK 36
1. Introduction 36
2. Why does equal value exist? 36 3. Equal value at European level 40
3.1 The text 40
3.2 Assessment of the text 41 4. Problems and prospects: the individual litigation enforcement mechanism 43 5. Legislative development of equal pay for work of equal value in France and the UK 46
5.1 Pre-1983 46
5.2 The EC intervenes 47 5.3 The new shape of equal value: institutional role distribution and content 48
5.3.1 Courts and Tribunals 48 5.3.2 Conciliation bodies 50 5.3.3 Official equality agencies 51 5.3.4 Labour Inspectorate and Public Prosecutor 52 5.3.5 Secretary of State for Employment 53
5.3.6 Unions 53
5.3.7 Specialised pressure groups 56
5.3.8 Experts 56
5.4 Analysis 57
6. Litigation post-1983 58 6.1 Levels of equal value litigation 58 7. Strategic use of litigation by UK unions 63 8. Deciphering the utilisation puzzle 65 8.1 The importance of an equality agency or its functional equivalent 67 8.2 Differing equality topographies 71 Chapter 3 - The case law landscape 72
1. Introduction 72
2. United Kingdom 73
2.1 The 1970s: exploring the utilisation of the national provisions 73 2.2 The 1980s: reach expanded, depth diminished and the arrival of Community law 77 2.2.1 Direct discrimination 77
2.2.1.1 Sexual harassment 79
2.2.1.2 Inferences in direct discrimination 80
2.2.1.3 The interpretation o f on the ground o f sex' 80
2.2.2 Indirect discrimination: the good, the bad and the ugly 82
2.2.2.1 Requirement/condition 83
2.2.2.2 A considerably smaller proportion o f women than men can comply 83
2.2.2.3 Justifiability 84
2.2.2.4 Which is to her detriment because she cannot comply 86
2.2.3 The arrival of Community law 87 2.3 The 1990s: the necessity to have systematic recourse to Community Law 90 2.3.1 The exception to the Community law recourse rules: non-comparative 90
direct discrimination issues
2.3.2 The ‘soft* touch of Community law: sexual harassment in the British courts 91 2.3.3 Resisting the inevitable: comparator problems, British courts and Community 94
sources
2.3.3.1 Comparator problems: dress codes, homosexuals and transsexuals 95
2.3.4 Indirect discrimination 97
2.3.4.1 Requirement/condition 98
2.3.4.2 A considerably smaller proportion o f women than men can comply 101
2.3.4.3 Justifiability 104
2.3.4.4 Which is to her detriment because she cannot comply 106
2.3.5 EC law: the commotion of the commonplace 106
2.3.5.1 The continuing battle over s. 6(4) SDA 106
2.3.5.3 Upper limits on SDA compensation 110
2.3.5.4 The big targets 110
2.3.5.5 The new situation 1 1 5
2.3.5.6 The fallout Part 1: s.66(3) SDA 119
2.3.5.7 The fallout Part 2: the MoD cases 119
2.3.5.8 The fallout Part 3: time limits and arrears limits - a new approach 122 3. The ECJ and the ETD 126 4. The French case law landscape 130 4.1 Cases utilising national sources 131 4.2 Cases using a mixture of national and supranational sources 139 4.3 Cases utilising purely supranational sources 144 4.4 Cases before the Conseil d'Etat 144 5. Reviewing the case-law landscape: dialogue(s) between sources? 146 5.1 First generation dialogue 148 5.2 Second generation dialogue 153 5.3 Third generation dialogue 155 Chapter 4 - The rest of the landscape: equality strategies and equal opportunities 157
1. Introduction 157
2. The topography of equality: desegregation and re-evaluation strategies 158 3. The weighting of strategies in the legislative maps 160 4. Development of the maps: explaining the normative dynamics 162 4.1 France: making litigation formal equality and voluntary desegregation 163
substantive equality
4.2 UK: privileging re-evaluation through litigation as substantive equality 168 4.2.1 The non-development of formal investigations 169 4.2.2 The valorisation of re-evaluative litigation strategies 171
4.2.2.1 The EC beckons 171
4.2.2.2 Connecting EC Impact with Normative Dynamics 174
5. Positive action as substantive equality: different maps, similar results 178 5.1 Convergence: positive action and equal opportunities in France, the UK and 179
the EC
5.1.1 The UK 179
5.1.1. 1 Positive action in the legislative map 179
5. l.J. 2 Technique and methods o f realising positive action 181
5.1.1.3 Equal opportunities and positive action in the UK: quantity and quality 184
5.1.1.4 Rationales advanced fo r equal opportunities or positive action 187
5.1.2 France 189
5.1.2.1 Positive action in France; qualitative and quantitative analysis 189
5.1.3 The EC map: what might 'positive action* mean? 193
5.1.3.1 Equal treatment, equal pay and positive action 195
5.1.3.2 Article 2(4) and positive action 196
5.1.3.3 The equality principle. Article 2(4) ETD, Article 6(3) ASP and positive action 198
5.1.3.4 The derogations from Article 2(1): degrees o f scrutiny 203
Chapter 5 - Pregnancy and Beyond 212
1. Introduction 212
2. Basic Provision 213
3. Examination of the Rationales 215 3.1 The UK: voluntarist and business efficiency rationales 215 3.1.1 The legislation 216 3.1.2 Judicial interpretation of maternity rights: fragile rights, managerial prerogative 222
and the contract
3.1.2.1 The statutory analysis 224
3.1.2.2 The contractual analysis 225
3.1.3 Supplementing the 'floor of rights’: employers and collective bargaining partners 228 3.2 Health and safety rationale: the Pregnancy Directive 230 3.2.1 Changing the proposal 231 3.2.2 The three issues 232 3 i Equality rationale: the ETD, the SDA, the ECJ and the UK courts 234 33.1 The first comparative approach: no comparison possible 235 3.3.2 The second comparative approach: the hypothetical man 235 3.3.3 The no-comparison necessary approach 236 3.3.3bis Doctrinal evaluation of the various comparator approaches 238 3.3.4 Combined approach 1: the temporal distinction in Hertz 239 3.3.46/s Doctrinal evaluations of the temporal distinction 240 3.3.5 Combined approach 2: sidestepping the no-comparison necessary approach 240 3.3.6 Combined approach 3: the ECJ plays with 'the protected period’ 244 3.4 Preliminary assessment 247 3.5 Protected worker rationale: France 249 3.5.1 The legislation 249 3.5.2 Judicial interpretation of the legislation 254 3.5.3 Collective bargaining on pregnancy and maternity 258 4. Rationales informing pregnancy regulation: perspectives and evaluation 258 5. Beyond Pregnancy: regulation of the post-birth period 262 5.1 Post-birth regulation in the UK 262 5.2 Post-birth regulation in France 263 5 J Post-birth regulation at EC level 264 53.1 Post-birth mother-only leave 265 5.3.2 Parental leave 270 Chapter 6 - The Female Night Work Ban: Interactions with Equality Conceptions 273
and Employment Regulation
1. Introduction 273
2. The introduction of equal treatment law and female-specific employment regulation: 276 the process of justification
2.1 The legal framework of female-specific employment regulation 276 2.1.1 Hours of work regulation 276 2.1.2 Other types of female-specific employment regulation 279 2.2 The UK in the first period: 1969-1979 282
2.3 France in the first period: the Roudy Law and female-specific employment regulation 285 3. Subsequent legislative developments: manipulating equality 288 3.1 The UK in the second period: 1979-1989 288 3.1.1 The EOC report in 1979 288 3.1.2 The process of abolition: the Sex Discrimination Act 1986 and the Employment 291
Act 1989
3.1.2.1 Making equality - repeal 291
3.1.2.2 Making equality = almos t repeal 294
3.2 France in the second period: post-1983 295
3.2.1 The 1987 law 296
3.3 Comparing models of regulation: UK, France and Italy 300 4. Night works in the Courts: national, supranational and international norms 303 4.1 Putting the collective derogation system in practice: France and Italy 303 4.2 Female night work models and equality formulations 308 4.3 The preliminary references 312 4.3.1 Arguments on the norm 315 4.3.2 The Court on the norm 317 4.3.3 Arguments on the formulation of equality 318 4.3.4 The EC equality formulation and its application to night work 319 4.4 Reception and circulation of the ECJ's night work jurisprudence: the 321
dual seductiveness of the supranational norm
4.4.1 Courts in referring countries: France and Belgium 321 4.4.2 Courts in non-referring countries: Germany and Italy 323 5. Outside the Courts: the EC, the Member States, the trade unions and the ILO 329 5.1 The EC and the Member States 329 5.2 The ILO, Convention No.89 and the Member States 332 5.3 French Unions and female night work 334 5.4 Legislative developments: filling the holes left by repeal? 338 5.4.1 The EC Working Time Directive 343 5.4.2 ELO: the 1990 night work standards 346 5.5 The Member States 348 6. Formal and substantive equality and night work regulation 351 6.1 From noise to silence: doctrinal interest in the relationship of female night work 351
with equal treatment
• 6.2 Silence and straightforward approbation: UK doctrinal comment on repeal of 356 female-specific regulation
6.2.1 Explaining the silence: formal and substantive equality in the UK night work debate 358 6.3 And ne'er the twain shall meet: sex equality and labour law analysis in French 364
doctrinal comment on female night work regulation
6.3.1 Equality (and non-discrimination) as general principles in the French legal system 365 6.3.2 Formal and substantive equality as organising principles in French labour law 368 6.3.3 Equality of treatment on grounds of sex 373 6.4 Toward conceptual articulation?: formal and substantive equality in the Italian 376
night work debate
7. Conclusion 381
1. The use and content of equality sources: from the bottom-up, the middle ground 385 and the top-down
1.1 The bottom-up: utilisation and ownership of equality laws 385 1.2 The middle ground: national courts and dialogue between sources 387 1 3 The top-down: the ECJ nod equality sources 392 2. Evaluating equality laws and the meanings of formal and substantive equality 395 2.1 As ‘mobilization* around ‘law’ 396 2.2 As a critique of symmetrical and comparative approaches 397 1 3 As evaluations of equality strategies 398 2.4 As disagreements on whether legal measures breach equality norms 398 2.5 As the failure of equality laws to open the public/private divide 400 2.6 As concepts in labour lav/ and sex equality 401
Table of Cases
European CommunityCase 26/62 Van Gend en Loos v. Nederlandsie Tariefcommissie [1963] ECR 1. Case 43/75 Defrenne v.Sabena (No.2) [1976] ECR 455.
Case 33/76 Rewe [1976] ECR 1989.
Case 149/77 Defrenne v. Sabena (No. 3) [1978] ECR 1365. Case 129/79 Macarthys Ltd v. Smith [1980] ECR 1275. Case 69/80 Worringham v. Lloyd's Bank [1981] ECR 767.
Case 96/80 Jenkins v. Kingsgate (Clothing Productions) Ltd [ 1981] ECR 911. Case 155/80 Oebel [1981] ECR 1993.
Case 12/81 Garland v. British Rail Engineering [1982] ECR 359. Case 19/81 Burton v. British Railways Board [ 1982] ECR 554. Case 58/81 Commission v. Luxembourg [1982] ECR 2175. Case 61/81 Commission v. UK [1982] ECR 2601.
Case 163/82 Commission v. Italy [1983] ECR 3273 . Case 165/82 Commission v. UK [1983] ECR 3431. Case 199/82 San Giorgio [1983] ECR 3595.
Case 14/83 von Colson cmdKamarm v. Land Nordrhein-Westfalen [1984] ECR 1891. Case 79/83 Harz. v. Deutsche Tradax [1984] ECR 1921.
Case 184/83 Hofmann v. Barmer Ersatzkasse [1984] ECR 3047. Case 143/83 Commission v. Denmark [1985] ECR 427.
Case 248/83 Commission v. Germany [1985] ECR 1459.
Case 151/84 Roberts v. Tate & Lyle Industries [1986] ECR 703.
Case 152/84 Marshall v. Southampton and South West Hampshire Area Health Authority [1986] ECR 723.
Case 262/84 Beets-Proper v. Van Lanschot Bankiers NV [1986] ECR 773. Case 170/84 Bilka-Kaufhaus GmbH v. Weber von Hartz [1986] ECR 1607. Case 222/84 Johnston v. Chief Constable of the RUC [1986] ECR 1651.
Case 30/85 Teuling-Worms v. Bestuur van de Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497.
Case 192/85 Newstead v. Department o f Transport and HM Treasury [1987] ECR 4743. Case 318/86 Commission v. France (Re Sex Discrimination in the Civil Service) [1988] ECR 3559.
Case 312/86 Commission v. France [1988] ECR 6315.
Case 171/88 Rinner-Kiihn v. FWWSpezial Gebaudereinigung GmbH [1989] ECR 2743. Case 109/88 Handels- og Kontorfunktionaeremes Forbund i Danmark (actingfor Danfoss) v.
Dansk Arbejdsgiverforening [1989] ECR 3199
Case 102/88 Ruzius-Wilbrink v. Bestuur van de Bedrijfsvereniging voor Overheidsdiensten [1989] ECR 4311.
Case C-262/88 Barber v. Guardian Royal Exchange [1990] ECR 1-1889.
Case C-213-89 R v. Secretary o f State ex parte Factortame [1990] ECR 1-2433. Case C-33/89 Kowalska v. Freie und Hansestadt Hamburg [1990] ECR 1-2591. Case C-188/89 Foster v. British Gas [ 1990] ECR 1-3313.
I-3941.
Case C-l 79/88 Handels-og Kontorfunktionaeremes Forbund i Danmark (acting fo r Hertz) v.
Dansk Arbejdsgiverforening (actingfor Aldi MarkedK/S) [1990] E C R 1-3979.
Case C-106/89 Marleasing v. La Comercial Internacional De Alimentación SA [ 1990] ECR I- 4135.
Case C-184/89 Nimz v. Freie und Hansestadt Hamburg [1991] ECR 1-297. Case C-229/89 Commission v. Belgium [1991] ECR 1-2205.
Case C-345/89 Criminal Proceedings against Alfred Stoeckel [1991] ECR 1-4047. Cases C-6/90 and C-9/90 Francovich andBonifaci v. Italy [1991] ECR 1-5357.
Case C-208/90 Emmott v. Minister fo r Social Welfare and Attorney G em ral [1991] ECR 1-5535. Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v. Bötel [1992] ECR 1-3589.
Case C-173/91 Commission v. Belgium [1993] ECR 1-673.
Case C -158/91 Ministère Public et Direction du travail et de l'emploi v. Levy [1993] ECR I- 4287.
Case C- 271/91 Marshall v. Southampton and South West Hampshire Area Health Authority
(No.2) [1993] ECR 1-4367.
Case C -l09/91 Ten Oever v. Stichting Bedrijfspensioenfonds voor het Glazenwassers-en
Schoonmaakbedrijf [1993] ECR 1-4879
Case C-338/91 Steenhorst-Neerings v. Bestuurvan de Bedrijfsvereniging voor Detailhandel,
Ambachten en Huisvrouwen [1993] ECR 1-5475.
Case C -l27/92 Enderby v. Frenchay Health Authority [1993] ECR 1-5535 Case C-189/91 Kirshammer-Hack v. Sidal [1993] ECR 1-6185.
Case C-13/93 Office national de l ’emploi (ONEM) v. Madeleine Minne [1994] ECR 1-371. Case C-421/92 Habermann-Beltermann v. Arbeiterwohlfahrt, Bezirksverband NdblOpf eV [1994] ECR 1-1657.
Case C-32/93 Webb v. EMO (Air Cargo) Ltd [1994] ECR 1-3567.
Case C-200/91 Coloroll Pension Trustees Ltd v. Russell [1994] ECR 1-4389. Case C-408/92 Smith v. Avdel Systems Ltd [1994] ECR 1-4435.
Case C-28/93 Van der Akker v. Stichting Shell Pensioenfonds [1994] ECR 1-4527.
Case C-57/93 Vroege v. NCIVInstituut voor Volkshuisvesting B V and Stichting Pensioenfonds [1994] ECR 1-4541.
Case C -l28/93 Fisscher v. Voorhuis Hengelo BV and Stichting Bedrijfspensionenfonds voor
Detailhandel [1994] ECR 1-4583
Case C-410/92 Johnson v. Chief Adjudication Officer (No.2) [1994] ECR 1-5483 Case C-152/91 Neath v. Hugh Steeper Ltd [ 1994] ECR 1-6935.
Case C-400/93 Royal Copenhagen v. Specialarbejderforbundet i Danmark [1995] ECR 1-1275. Case C-62/93 BP Supergas v. Greece [ 1995] ECR 1-1883.
Case 116/94 Meyers v. Adjudication Officer [1995] ECR 1-2131.
Case C-450/93 EckhardKalanke v. Freie Hansestadt Bremen [1995] ECR 1-3051. Case C-317/93 Nolte v. Landesversicherungsanstalt Hannover [1995] I-ECR 4625.
Case C-444/93 Megner and Scheffel v. Innungskrankenkasse Vorderpfalz [1995] I-ECR 4741. Case C-457/93 Kuratorium fu r Dialyse und Nierentransplantation v. Lewark [1996] ECR 1-243. Case C-342/93 Gillespie and others v. Northern Health and Social Services Board and others [1996] ECR 1-475.
Case C-278/93 Freers and Speckmann v. Deutsche Bundespost [1996] ECR 1-1165.
Transport ex parte Factortame, 1 CMLR [1996] 889.
Case C-392/93 R v. HM Treasury ex parte British Telecommunications pic, 2 CMLR [1996] 217. Case C-5/94 R v. Ministry o f Agriculture, Fisheries and Food ex parte Hedley Lomas (Ireland)
Ltd., 2 CMLR [1996] 391.
Case C-435/93 Dietz v. Stichting Thuiszorg Rotterdam [1996] IRLR 692 (ECJ). Case C-13/94 P v. S and Cornwall County Council [1996] IRLR 347 (ECJ). Case C-84/94 UK v. Council o f the European Union [1997] IRLR 30 (ECJ).
Joined Cases C-l 78/94, C-l 88/94, C-l89/94 and C -l90/94 Dillenkofer et al v. Federal Republic
o f Germany [1997] IRLR 60 (ECJ).
Case C-197/96 Commission v. France judgment of 13 March 1997, not yet reported.
C-l 36/95 Caisse nationale d ’assurance viellesse des travailleurs salariés v. Evelyne Thibault, AG D Ruiz-Jarabo Colomer, Opinion of 9 January 1997.
Case C-400/95 Handels-Og Kontorfunktionaeremes Forbund i Danmark (acting on behalf o f
Helle Elisabeth Larsson v. Dcmsk Handel & Service (acting on behalf o f Fotex Supermarket A.S.), AG D Ruiz- Jarabo Colomer, Opinion of 18 February 1997.
Case C-409/95 Marschall v. Land Nordrhein-Westfalen OJ 1996 C 46/11. Case C-246/96 Magorrian v. Eastern Health and Social Services Board. Case C-249/96, Grant v. South West Trains.
R v. Secretary o f State ex parte Perkins, referred by High Court (UK) on 13 March 1997.
United Kingdom
AB v. South West Water Services Ltd. [1993] 1 All ER 609. Automotive Products Ltd v. Peake [1977] IRLR 365. BA Engine Overhaul v. Francis [1981] IRLR 9. Bain v. Bowles and others [1991] IRLR 356 (CA). Baker v. Cornwall City Council [1990] IRLR 194 (CA).
Balgobin and Francis v. London Borough o f Tower Hamlets [1987] IRLR 401.
1. Barber v. Guardian Royal Exchange Assurance Group; 2. Roberts v. Tate & Lyle Food & Distribution [1983] IRLR 240.
Barber v. Staffordshire County Council [1996] IRLR 209. Berrisford v. Woodard Schools [1991] IRLR 247.
Bhudi and others v. IMI Refiners Ltd. [1994] IRLR 204.
Bick v. Royal West o f England School for the Deaf [1976] IRLR 326 (IT). Biggs v. Somerset County Council [1996] IRLR 203 (CA).
Blaik v. The Post Office [1994] IRLR 280.
Bracebridge Engineering Ltd. v. Darby [1990] IRLR 3.
Briggs v. North Eastern Education and Library Board [1990] IRLR 81 (NICA). British Gas pic v. Sharma [1991] IRLR 101.
British Coal Corporation v. Smith and others [1996] IRLR 404. British Road Services Ltd v. Loughran [1997] IRLR 92 (NICA). Brook and others v. London Borough o f Haringey [1992] IRLR 478. Brown v. Rentokil [1995] IRLR 211 (CS).
Burrett v. West Birmingham Health Authority [1994] IRLR 7 (CA). Burton v. British Railways Board [1981] IRLR 16.
Cannon v. Barnsley Metropolitan Borough Council [1992] IRLR 474. Caruana v. Manchester Airport pic [1996] IRLR 378.
Cassell v. Broome [1972] AC 1027.
Cato v. West Midlands Regional Authority 51 EOR (1993) 28 (IT). Chattopadhyay v. Headmaster o f Holloway School [1981] IRLR 487.
Clarke v. Powell v. Eley (IM1) Kynoch Ltd [1982] IRLR 131 (IT); [1982] IRLR 48. Clifford v. Devon County Council [1994] IRLR 628.
Clymo v. Wandsworth London Borough Council [1989] IRLR 241.
Cobb and others v. Secretary’ o f State fo r Employment and Manpower Services Commission
[1989] IRLR 464.
Coleman v. Skyrail Oceanic Ltd [1981] IRLR 398 (CA).
Conway v. Queens University o f Belfast [1981] IRLR 43 (NICA).Conway v. Queens University o f Belfast [1981] IRLR 43 (NICA).
Cornelius v. University o f Swansea [1987] IRLR 141 (CA). Crees v. Royal London Insurance [1997] IRLR 85.
Crouch v. Kidsons Impey [1996] IRLR 79.
De Souza v. The Automobile Association [1986] IRLR 103 (CA). Deane v. Ealing Borough Council [1993] IRLR 209.
Dornan v. Belfast City Council [1990] IRLR 179 (NICA) Doughty v. Rolls Royce pic [1992] IRLR 126.
Duke v. GEC Reliance [1988] IRLR 118 (HL). Duke v. GEC Reliance [1987] IRLR 139 (CA). Duwuona v. John Lewis Ltd [1987] IRLR 310.
Enderby v. Frenchay Health Authority [1991] IRLR 44. Etam pic v. Rowan [1989] IRLR 150.
Finnegan v. Clowney Youth Training Programme [1990] IRLR 299 (HL). Fleming v. Short Bros. 51 EOR (1993) 19.
Foster v. South Glamorgan Health Authority [1988] IRLR 277. Foster and others v. British Gas [1991] IRLR 268 (HL). Foster and others v. British Gas pic [1988] IRLR 354 (CA). Greater Glasgow Health Board v. Carey [1987] IRLR 484. Greater Manchester Police Authority v. Lea [1990] IRLR 372. Greenwich Homeworkers Project v. Mavron 37 EOR (1991) 35. Grieg v. 1. Community Industry and 2.Ahem [1979] IRLR 158. Gubala v. Crompton Parkinson Ltd [1977] IRLR 10 (IT).
Hampson v. Department o f Education and Science [1989] IRLR 72 (CA). Harvey v. Institute o f the Motor Industry (No.2) [1995] IRLR 416.
1. Hayes v. Malleable Working M en’s Club and Institute; 2. Maughan v. North East London Magistrates’ Court Committee [1985] IRLR 367.
Hilton International Hotels Ltd v. Kaissi [1994] IRLR 270. Home Office v. Holmes [1984] IRLR 299.
Horsey v. Dyfed County Council [1982] IRLR 395.
Hughes v. London Borough o f Hackney 7 EOR (1986) 27. Hurley v. Mustoe [1981] IRLR 208.
Insitu Cleaning Co. Ltd and another v. Heads [1995] IRLR 4. Institute o f the Motor Industry v. Harvey [1992] IRLR 343.
James v. Eastleigh Borough Council [1989] IRLR 318 (CA). James v. Eastleigh Borough Council [1990] IRLR 288 (HL).
Jenkins v. Kingsgate (Clothing Productions) Ltd (No.2) [1981] IRLR 388. Jeremiah v. Ministry o f Defence [1979] IRLR 436 (CA); [1978] IRLR 402. Jones v. University o f Manchester [1993] IRLR 218.
Jones v. Tower Boot Co Ltd [1997] IRLR 168.
Kelly v. Liverpool Maritime Terminals Ltd [1988] IRLR 310 (CA). Khanna v. Ministry o f Defence [1981] IRLR 331.
Kidd v. DRG (UK) Ltd [1985] IRLR 190.
King v. Great Britain-Cliina Centre [1991] IRLR 513 (CA). Kolfor Plant Ltd v. Wright [1982] IRLR 311.
Kwik Save Stores Ltd v. Greaves reported in 564 IRLB, March 1997, 13. Lavery v. Plessey Telecommunications [1983] IRLR 202 (CA).
Lavery v. Plessey Telecommunications Ltd [1982] IRLR 180. Levez v. T H Jennings (Harlow Pools) Ltd [1996] IRLR 499. Livingstone v. Hepworth Refractories pic [1992] IRLR 63.
London Borough o f Lambeth v. CRE [1989] IRLR 379; [1990] IRLR 231 (CA). London Underground Lid v. Edwards (No.2) [1997] IRLR 157.
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Germany
Introduction
‘It is the comparative dimension which has often been lacking from our discussion, by which I mean not the foolish search for institutions to import from elsewhere but the stretching of the imagination and of the agenda by inquiry into unfamiliar legal treatments of familiar social problems and in so doing to follow the argument wherever it leads’.
Lord Wedderbum, ‘The Social Charter in Britain: Labour Law and Labour Courts?’ (1991) Modem Law Review 1,1.
Gender inequality1 is certainly a familiar social problem. One of its most tangible manifestations is the situation of women on the labour market This situation is characterised by the pervasiveness and persistence of the horizontally and vertically segregated nature o f ‘women’s work’, the gendered construction of skill which is intrinsically linked to lower pay for women, and the predominance of women in so-called ‘atypical’ or marginal employment forms. Indeed, increasing investigation into the situation of women, ethnic minorities and other disadvantaged groups, such as older workers, on the labour market has led to an important change of focus in the study of industrial relations and labour law
In the first place, alongside the traditional focus on the subordination of the worker within the contract of employment and the need for workers to band collectively to counterbalance the vertical inequality of the relationship between employer and employee, has come an insistence that horizontal inequalities - that is inequalities within and between workers - constitute a challenge of similar magnitude for labour regulation Hence it is argued that efforts must be made to fashion regulatory techniques and structures which will address both types of inequality.
11 have tended to use the term sex equality more frequently than the term gender equality in this thesis as this is the terminology utilised by the legislation examined and by the courts This does not imply agreement with the view
In the second place, the specific focus on gender has problematised the boundaries between the public sphere of paid labour market work and the private sphere of unpaid caring work. In particular, in labour law, it has challenged legislative, collective and employer-imposed norms which construct and reward employees who fit a particular model. In showing that women find it more difficult to fit this model, the gender focus also reveals that the ‘haves' on the labour market - those who can fit the ‘normal’ employee model, mostly men - are wholly dependent on the existence of the ‘have-nots’,2 or perhaps, more accurately, the ‘have-lesses’, mostly women in order to participate in the labour market in the way in which they do. Moreover, to maintain a set of labour market norms where ‘full-time’, uninterrupted participation on the labour market is the expectation also means that the real ‘haves’ tend to be employers as current labour market organisation tends to ignore or marginalise the many other important responsibilities and needs that workers - both male and female - may have: to acquire knowledge, to be active parents, to work safe in the knowledge that their children are being properly cared for, to care for parents or grandchildren, perform voluntary work and have time for soda! activities. Trying to rethink labour market norms to accommodate these needs is both a giddying and an awesome task as it requires tackling many of our most ‘matter-of-fact’ assumptions about how market work and other activities - in particular care work - are organised and valued.
From these vertiginous speculations, we can turn to see what tools have been forged in order to challenge gender inequalities on the labour market, in particular, the gendered construction of jobs, skill, pay and employment forms In a European context, an important starting point is the
corpus of laws created by the European Community. It has been said that ‘the history of Community labour law .has yet to be written’ .3 Yet, there can be little doubt that an essential part of that history will be the development of sex equality in Community law. A panoramic view of the adoption by the Community of social policy measures to tackle vertical and horizontal inequalities reveals that sex equality policy occupies a rather particular position. In tenns of formulating norms to alleviate vertical inequalities, Community social policy has been accurately
2 Galanter, ‘Why the ‘haves’ come out ahead: Speculation on the limits of legal change', 9 Law and Society
Review (1974) 95
3 Simitis and Lvon-Caen, ‘Community Labour Law: A Critical Introduction to its History’, in P. Davies, A. Lycn-Caen, S. Saarra, S. Simitis, European Community Labour Law: Principles and Perspectives: Liber Amicorum
characterised as the ‘Cinderella’ of Community law;4 while Community action sits in the fast lane - hell bent on getting to the ‘ball’ of market integration (accentuating vertical inequalities and reducing Member States’ scope to pursue their own social policies in the process)5 - social policy sits in the slow lane or, as Shaw puts it, the ‘twin-track’ of Community law.6
In terms of tackling horizontal inequalities, sex equality law has a strong claim to be the only brightly shining star in the EC social policy firmament. As Hepple remarks, ‘legal intervention against other forms of social discrimination remains patchy at national level, and non-existent at Community level’.7 Sex equality has had a Treaty article of its own from the outset. A shaft of directives on sex equality were adopted throughout the 1970s and 1980s as an acceptable way of giving what Shanks has termed, ‘a human face’ to the EC.* A plethora of ‘soft law’ measures have been adopted within this sphere. Moreover, the momentum in the sex equality field has been sustained by over 100 judgments on sex equality sources in preliminary reference procedures which have been given by the European Court of Justice (ECJ), adding often unexpected flesh and blood to Community sex equality policy.
The emphasis on sex equality at Community level is important for another reason. It meant that the Member States were obliged to comply with the principle of equal pay in Art. 119 and to implement the equality directives into their national legal orders. To a student of labour law in the UK at the beginning of the 1990s, EC law on sex equality - particularly as interpreted by the ECJ - seemed to be a very brightly shining star indeed. The broadly worded obligations laid down in
4 Szyszczak, ‘Social Policy a Happy Ending or a Reworking of the F any Tale’ in D. O'Keeffe and P. Twomey (eds) Legal Issues o f the Maastricht Treaty (Wiley: Chichester, 1996) 313.
5 See Leibfried and Pearson, ‘Social Policy’ in H. Wallace and W. Wallace (eds) Policy Making in the
European Umon ( 3rd edn OUP: Oxford, 1996) 185 and Lord Wedderbum, ‘Freedom and Frontiers of Labour Law’
in Lord Wedderbum, Labour Law and Freedom. Further Essays in Labour Law (Lawrence and Wishart: London, 1995) 350, in particular, at 375ff.
‘ Shaw, ‘Twin-Trade Social Europe - the Inside Track’ in D. O’Keeffe and P. Twomey (eds) Legal Issues o f
the Maastricht Treaty (Wiley: Chichester, 1994) 295.
7 Hepple, ‘Equality and Discrimination' in P. Davies, A. Lvon-Caen, S. Sciarra, S. Simitis, European
Communia Labour Law: Principles and Perspectives. Liber Amicorum Lord Wedderbum (Clarendon Press: Oxford,
1996) 237 at 237.
Community norms - and subject to teleological interpretation by the European Court - contrasted starkly with the darkness of their highly technical UK equivalents, which were, in turn, subject to often restrictive interpretation by the UK courts. While resort to supranational equality norms and their more generous interpretation was always potentially there to provide arguments to circumvent unwelcome interpretations at national level or to force changes in national law, it seemed wholly plausible that tne UK’s record on sex equality - as in many areas of employment protection - must be one of the worst in Europe. It remained simply to demonstrate that contention France seemed the obvious choice as a comparator country. It was, after all, France, which had succeeded in inserting Article 119 into the Treaty of Rome.9 This seemed to clearly indicate that France would have a better record on sex equality than the UK. The original aim of this thesis was simply to show how other Member States, such as France, complied with their EC sex equality obligations in a more thorough going manner than the UK.
On the basis of existing UK materials, it seemed as if the basis for such a comparison was straightforward In the UK, knowledge of sex equality law was readily available. Labour law textbooks contain large sections on sex equality laws, at national and supranational level. There is a steady supply of well reported cases and wide coverage of sex equality issues in academic journals A rash of specialised monographs on sex equality law in the UK had appeared in the 1980s,10 as had specialised monographs on EC sex equality law at the beginning of the 1990s.11 The task appeared to be simply that of reading the books on French sex equality law, analysing the cases to see how French courts had dealt with issues such as equal value, direct and indirect discrimination and highlighting the unnecessarily restrictive and unacceptable approach the UK legislature and courts had taken
* See for accounts of the reasons for French insistence on the inclusion of Art. 119, Barnard, ‘The Economic Objectives of Article 119' in T.K Hervey and D. O’Keeffe (eds) Sex Equality Law in the European Union (Wiley;
Chichester, 1996) 321 and Hepple supra at n.7 at 241 ff.
10 E. Ellis, Sex Discrimination La*' (Gower: Aldershot, 1988), D. Pannick. Sex Discrimination Law (Clarendon Press: Oxford, 1985), R. Townshend-Smith. Sex Discrimination In Employment: Law, Practice and Policy
(Sweet and Maxwell: London, 1989), K O'Donovan and E. Szvszczak, Equality and Sex Discrimination Law (Blackwell: Oxford, 1988) More recent books on the topic include S. Honeyball, Sex, Employment and the Law (Blackwell: Oxford, 1991 ) and on anti-discnminanon laws in general C. Bourn and J. Whitmore, Anti-discrimination
law in Britain (Sweel and Maxwell: London, 1996)
" H. tWis, European Community Sex Equality Law (Clarendon Press: Oxford, 1991), S. Prechal and N. Burrows. Gender Discrimination Law o f the European Community (Dartmouth: Aldershot, 1990).
At the very least, this thesis illustrates the naivety of this belief. An initial examination of French materials showed that there were no articles - never mind monographs - examining the development of sex equality litigation in France. There was no easy way of finding out what cases had been decided, or how supranational sex equality sources emanating from the ECJ had been integrated into national understandings of equality. While a series of articles had been published at the time of the 1983 law which had implemented France’s obligations under the equal treatment and equal pay directives, after that sex equality litigation discourse had vanished apart from some discussion focused solely on supranational level developments and a lively debate surrounding female night work and its relationship with an equal treatment norm. This was the opposite of the situation in the UK, where the interaction of national and supranational sources in litigation constituted a crucial dynamic and where the issue of female night work had been dealt with as straightforwardly incompatible with sex discrimination laws. Could it be said then that it was the UK which was ‘advanced’ in sex equality terms while France was ‘backward’, interested only in maintaining archaic and discriminatory protections rather than using sex equality legislation as a means of challenging and reshaping labour market norms?
To move on from this impasse requires rethinking what is meant by ‘advanced’ or ‘better’ and ‘backward’ or ‘worse’ in sex equality terms in France, the UK and at EC level. In particular, how is this superiority to be measured and evaluated? This rethinking provided the springboard for this thesis. A number of possible contenders emerge as means of measuring or evaluating sex equality, each of which requires examining how law attempts to ensure that the promise of equality is realised.
A first possible contender for evaluating how law tries to realise the promise of gender equality is to look at the laws which the three legislatures in this study - France, the UK and the EC - introduced in order to promote gender equality on the labour market. This is done in Chapter 1, These laws might be expected to contain similar features and, in view of French and UK obligations to conform with EC legislation in this area, to show a fairly high degree of uniformity. To some extent, this is true. The three legislatures can be thought of as each selecting a piece of legislative ground (the size can vary). Each can then select from a variety of equality seeds and plants (or cross-breed new strains) which can be placed in the ground. The selection, dispersal and
concentration of the seeds and plants will be planned by the legislature, perhaps influenced by their knowledge of the local climate and the soil. They may arrange for gardeners to tend the seeds and plants. The nascent equality concepts and techniques produced may then be used to attaick or transform employment rules and practices. This will not be the case in the areas which each of the legislatures stakes out as being protected from interaction with these equality concepts and techniques.
Examining the variety of seeds they plant, the space given to different types of seeds to grow and the areas a priori excluded can give us some idea of how they expect the legislative ground they have sown to develop and allow us to evaluate these choices. While the French and British choices of legislative equality 'seeds’ were to some extent circumscribed, or potentially subject to control by the EC, Member States retained a substantial degree of control, at least initially over the methods by which the substantive anti-discrimination guarantees they contained could be realised. Therefore, returning to Lord Wedderbum’s advice, while it was clear that sex equality had developed very differently in France and the UK, the legal treatment of familiar social problems was not entirely ‘unfamiliar’ at the legislative level. Indeed the sex equality legislative maps in all three jurisdictions were very much like a ‘family’: there were many resemblances between the maps although each had its own distinctive characteristics.
The crucial point, of course, is to recognise that a comparison of legislation is a necessary but insufficient manner of ascertaining whether a legal treatment is ‘familiar’ or ‘unfamiliar’ We can move on by considering that while EC equality norms did not exercise a high degree of normative control over the methods by which equality guarantees could be ensured, one method of allowing individuals to enforce equality rights was required by the equality directives: litigation. It was the unfavourable comparison of UK norms and litigation with their supranational counterparts which had initially prompted the writing of this thesis With regard to litigation, the comparison with France certainly permits ‘the stretching of the imagination and of the agenda’. It does this by challenging implicit assumptions on sex equality litigation from three perspectives: one from the ‘top-down’, one from the ‘middle’ and the other from the ‘bottom-up’.
of jurisprudence as a result of a steady stream of references from national courts on Art. 119 and the equality directives over the last two decades. Yet even a preliminary glance at the situation in France promptly puts paid to a simple ‘objectified’ model of European integration in the area of sex equality, a model m which the ECJ acts ‘on’ the Member States and each judgment produced by the ECJ automatically flows into the national legal orders, provoking adjustments where necessary in each of these legal orders. No such flow occurs in France. This, in turn, makes the more systematic reception of ECJ judgments on sex equality in the UK legal order something to be explained and analysed rather than merely accepted. The conditions under which ECJ sex equality judgments are produced and circulate in the EC is a recurring theme throughout this thesis.
From the important perspective of using litigation to ensure congruence between national and supranational equality concepts and techniques, the development of the EC equality landscape is dependent on the Commission bringing infringement proceedings under Art. 169, or on national judges bringing a question concerning the interpretation of Community law before the ECJ. Given the limited resources of the Commission, the potentiality for congruence, conflict or ignorance between national and supranational concepts lies crucially with the national courts which occupy the ‘middle ground’in this top to bottom analysis, and in the relationship which develops between national courts and the ECJ. Hence, an important part of this thesis will be to see when, how, why and on what issues particular national courts - with a specific (though not exclusive) focus on the UK and France - engage in dialogue with supranational sources. This cannot be done simply by counting the number of references to the ECJ, though this constitutes a specific and interesting type of dialogue.
From the ‘bottom-up’, it must be recognised that planting the legislative ‘seed’ of enforcement of equality rights through litigation does not mean that litigation will occur. Courts, whether national or supranational, cannot engage in dialogue with equality sources unless litigants come to court and present claims based on those sources. Therefore, for the line of dialogue between equality sources to be open, institutional conditions favouring equality litigation must be present. Compared with other employment rights, many substantive equality rights are delicate seeds and plants which require careful and sustained attention to flourish.
Chapter 2 of this thesis examines the ‘bottom-up’ perspective by analysing the institutional structures necessary to attain a threshold level of litigation with regard to a particularly delicate equality plant - equal pay for work of equal value. It explains why equal value should be perceived as a delicate plant, examines to what extent normal enforcement models have been modified to reflect this fact, and attempt:; to explain the factors underpinning the success or failure of these institutional modifications in stimulating and sustaining the growth of equal value. It also examines to what extent other type; of institutional mobilisation around equal value take place most effectively in the shadow of litigation.
Chapter 3 examines chiefly the development of the concepts of direct and indirect discrimination by French and UK courts and by the ECJ. It seeks to ascertain what issues have been challenged using these equality concepts and how the courts have dealt with these challenges. It focuses on the courts as a crucial point of mediation for the development of equality sources - both national and supranational - and develo ps a typology of dialogue between national and supranational sources to compare and attempt to explain why different types of dialogue have occurred in the French and UK courts.
Comparing the substantive output of the ECJ with that of French and UK courts is important for another reason. While EC sex equality may be seen as a shining star in the European social policy firmament, this is, of course, a relative position which is largely determined by, on the one hand, the quality of the judgments of the ECJ on substantive (as opposed to procedural) equality concepts and, on the other, the paucity of other ‘strong’ social policy measures at EC level to combat vertical and horizontal inequalities on the labour market. The EC sex equality star will not necessarily shine so bright in the national legal orders for a number of reasons.
First, from a comparative perspective, the national courts may well be making a better job of interpreting equality sources than the ECJ itself. Hence, while the ECJ may at certain contingent points in time, or on certain issues, give the lead in courageously developing certain substantive equality concepts, it is by no means axiomatic that the national courts will always be playing ‘catch up’ with the ECJ. This theme is developed further in Chapter 3 and Chapter 6.
Second, commencing our examination of equality enforcement mechanisms at EC level leads to a focus on litigation, on the ECJ and on national courts. From a litigation perspective, Chapters 2 and 3 seek to demonstrate that sex equality is both less, and differently, developed in France than in the UK. However, to conclude that France has a less developed sex equality landscape than the UK on the basis of a comparison of the quantity and quality of litigation would be wholly inadequate. Neither the French nor the UK legislative maps limited the methods for realising gender equality to litigation by aggrieved individuals. What needs to be explained, by looking at the whole of the legislative map in each country, is which parts have flourished and why.
Chapter 4 tackles these issues. It makes the argument that to explain the different paths followed by the French and British legislative maps requires tracing what have been termed in this thesis the normative dynamics of equality strategies. This means that the emphasis placed on which equality strategies are pursued depends on the normative evaluation of what the problems facing women on the labour market are, and the best way of using law to tackle those problems. It further develops a typology of legal strategies which is given a preliminary outline in Chapter 2 in order to show what types of arguments may be made about how law may be used to improve the position of women on the labour market. Arguments about which strategy is better are often made in terms o f‘formal’ and ‘substantive’ equality Chapter 4 makes the claim that the meaning of formal and substantive equality, in terms of the privileging of different types of equality strategies, is context-dependent. It seeks to demonstrate that in France, litigation is viewed per
se as formal whilst in the UK, re-evaluation of the jobs and forms of female employment through
litigation is seen as substantive. It attempts to explain why this is the case by examining the context-dependent evaluation of different equality strategies.
Chapter 4 goes on to examine one equality strategy which is often regarded as the essence of substantive equality, positive action. It challenges this facile labelling by examining the reality of positive action in France and the UK. It also challenges the equally facile labelling of positive action as anti-equality by critically analysing developments at EC level on positive action, in particular, the ECJ judgment in Kalanke. This judgment is also an example par excellence of the EC’s sex equality star shining less brightly when placed in certain national contexts.
