Equal pay and equal treatment at work (Article 157 of the Treaty on the Functioning of the European Union (TFEU) and Recast Directive 2006/54)

• Author: Frances Meenan
• Pages: 23-35

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4 Equal pay and equal treatment at work (Article 157 of the Treaty on the

Functioning of the European Union (TFEU) and Recast D irective 2006/54)

4.1 General (legal) context

4.1.1 Surveys on the gender pay gap and the difficulties of realising equal pay

The Summary of Public Consult ation in respect of the Gender Pay Gap was published by

the Department of Justice and Equality in January 2018. The Government proposes to

undertake a number of measures to narrow the gender pay gap. In order to do so, the

report stated that it in tended to commenc e discussions with the stakeholder namely the

employer bodies and the trade unions and to develop and p romote practical information

resources to explain and increase understanding of the multifaceted aspects of the gender

pay gap and its causes.76 It is also proposed to develop practical tools to assist employers

to calculate the gender pay gap within their organ isations and to consider its aspects and

causes, mindful of obligations regarding privacy and data protection. The Summary sets

out the reasons, citing some factors influencing the gender pay gap as including that 47 %

of women are in caring roles; 37 % of women in occupational and sectoral gender

segregation roles; 34 % in lower paid employment; 24 % discriminated against in the

workplace; 24 % unconscious bias; 21 % of women working in a part-time capacity; 13 %

where there is no transparency in pay structures; and 3 % in precarious employment or

working on zero-hour contracts.77

4.1.2 Surveys on the difficulties of realising equal treatment at work

The key survey has been on the gender pay gap, under 4.1.1 above.

4.1.3 Other issues

In this writer’s opinion, one of the key issues in respect of the gender pay gap is in

segregated employment (as cited above) as a complainant must have a comparator of the

opposite sex in order to pursue an equal pay claim.

4.1.4 Political and societal debate and pending legislative proposals

The Government on 26 June 2018 approved the General Scheme of the Gender Pay Gap

Information Bill.78 The proposed legislation will be cited as the Gender Pay Gap Information

Act 2018. The Employment Equality Act 1998 will be amended by the insertion of a number

of sections to include: ‘Gender Pay Gap Information.’

4.2 Equal pay

4.2.1 Implementation in national law

Section 7 of the Employment Equality Act 1998 provides that two persons are employed

to do ‘like work’ if: (a) both perform the same work under th e same or similar conditions

or each is interchangeable with the other in relation to the work; or (b) the work performed

by one is similar in nature to that performed by the other employee or if the condit ions

76 I.e. traditional role models, gender-segregated education and labour market, the challenges of balancing

work and family life, the difference in participation of men and women in family responsibilities, the

availability of quality, affordable childcare facilities and out-of-school hours care, and processes within

organisations where imbalance needs to be addressed.

77

http://genderequality.ie/en/GE/Summary%20of%20Public%20Consultation%20on%20Gender%20Pay%20

Gap%20-%20FINAL.pdf/Files/Summary%20of%20Public%20Consultation%20on%20Gender%20Pay%20G

ap%20-%20FINAL.pdf.

78 The Government published the Gender Pay Gap Bill 2019 in April 2019.

https://www.oireachtas.ie/en/bills/bill/2019/30/.