Appendix 1

Activity: Essay writing

Below is a sample essay title and a guide on how to prepare to answer it Discuss the extent to which EU discrimination law which is clearly binding on the UK has moved from a limited economic protection of women in the original EC Treaty to a much broader social agenda now, which has been reflected in the UK by the Equality Act 2010.

Answering the question

There are usually two key elements to answering essays in law:

• ■ first you are required to reproduce a certain factual information on a particular area of law and this is usually identified for you in the question;
• ■ second you are required to answer the specific question set, which usually is in the form of some sort of critical element, i.e. you are likely to see the words discuss, or analyse, or comment on, or critically consider, or even compare and contrast if two areas are involved.

Students for the most part seem quite capable of doing the first, and also generally seem less skilled at the second. The important points in any case are to ensure that you only deal with relevant legal material in your answer and that you do answer the question set, rather than one you have made up yourself, or the one that was on last year’s paper.

For instance, in the case of the first, in this essay you are likely to provide detail on the following: Article 157 TFEU (originally Article 119 EC Treaty) which introduced the concept of men and women receiving equal pay for equal work, the development of more specific detail in Directive 75/117, the extension to conditions as well as pay in Directive 76/207, the Equal Pay Act 1970 and Sex Discrimination Act 1975 and subsequent amendments, the Recast Directive 2006/54, the Framework Directive on Equal Treatment 2000/78 and the Race Directive 2000/43, the various Regulations giving force to provisions from those directives and then the Equality Act 2010 creating a broad single framework for discrimination law. So there is quite a broad base of knowledge required.

In the case of the second the essay asks you to discuss the extent to which there is a development from a purely economic protection to a broad social agenda and also how this development has influenced the UK. So you must discuss the limitations of the original Treaty Article and the developments that have been made in EU law and how they have been implemented into UK law and the extent to which this involves a move from a limited economic protection to a wide social agenda and you must also reach a conclusion based on your discussion.

Relevant law

The appropriate law appears to be:

• ■ that discrimination law was created by the EC Treaty, the basic right in Article 157 TFEU (originally Article 119 EC Treaty) that men and women should receive equal pay for equal work;
• ■ that the provision is directly effective both vertically and horizontally Defrenne v SABENA;
• ■ that there is a broad definition of comparator to include the person who has formerly done the job MacArthys’ v Smith (in contrast to the original view of the English courts);
• ■ that the definition of pay is broad and includes e.g. perks Garland v BREL; sick pay Rinner Kuhn; training Botel; non- contributory occupational pension schemes Bilka Kaufhaus; redundancy payments ex p EOC; most importantly contracted out schemes Barber v Guardian Royal Exchange;
• ■ that the equal pay directive 75/117 (now part of the Recast Directive 2006/54) includes work of equal value as well as like work (where UK law did not 61/81 Commission v UK and Hayward v Cammell Laird Shipbuilders), and explain the significance of job evaluation studies, and that the claimant can only achieve equal not fair pay Murphy v An Bord Telecom Eireann, and explain the criteria for such schemes in Rummler;
• ■ the importance of the Bilka Kaufhaus criteria for justifying pay differentials;
• ■ the position on back pay in equal pay claims Preston v Wolverhampton NHS Trust;
• ■ that there was an early extension away from pay into conditions in directive 76/207 the original equal access directive (now see Directive 2006/54);
• ■ the importance of direct effect Marshall;
• ■ (possibly could also consider the extension into social security matters – directive 79/7 and self-employment – Directive 86/613);
• ■ that there is a new social agenda in the EU treaties – and anti- discrimination is now covered in the broadest terms through the Race Directive 2000/43 and the Framework Directive 2000/78 which extended discrimination law to cover age, disability, gender reassignment, sexual orientation, religion and belief – and introduced a new definition of indirect discrimination which favours claimants;
• ■ that the UK introduced various Regulations to cover these areas e.g. the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief ) Regulations 2003;
• ■ that subsequently the UK has passed the Equality Act which includes eight protected characteristics – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation’;
• ■ that the Act also introduces prohibited conduct, the areas of discrimination, which are direct, indirect, harassment and victimisation and there are some more specific ones that operate in relation to specific protected characteristics – and also covers discrimination in employment in recruitment and selection, during employment and on dismissal.

Evaluation

• ■ Consider the original incongruity of the basic right in Article 157. It was not really part of the free market aims – so there was some economic context but it always looked like a social provision.
• ■ But consider that it was part of the economic agenda.
• ■ Consider the ‘dual objectives’ and the reasons for them – the economic objective (to ensure that there is no distortion of competition based on unfair advantage caused by differential wage policies for men and women) – the social objective (to improve the living and working conditions of people in the Community generally.
• ■ Consider how the ECJ expanded the scope of the Article in the case law on the meaning of pay, on the definition and nature of comparator and in various other ways.
• ■ Consider the problems associated with differential conditions of e.g. part-time workers.
• ■ Consider the tension between the EU and Member States in terms of direct effect.
• ■ Consider the expansion and amplification into Directive 75/117 and with other directives on e.g. pensions.
• ■ Consider the problems associated with work of equal value.
• ■ Discuss the problems associated with the UK failure to provide an action for work of equal value.
• ■ Discuss the expansion into conditions in Directive 76/207.
• ■ Discuss the problems that this caused for the UK in relation to differential retirement ages.
• ■ Discuss how EU moved away from a purely economic agenda and how there is now a much broader social agenda which runs well beyond pure parity of pay.
• ■ Discuss how this broader social agenda now includes rules on discrimination in race, age, disability, sexual orientation, religion and belief.
• ■ Discuss how the EU in any case developed and defined e.g. principles of harassment and contrast with the lack of any real definition in UK law and the only action being for ‘suffering any other detriment’.
• ■ Discuss the effect of equality legislation – that it regulates more internally within Member States than on an intra- EU basis.
• ■ Discuss also the new Recast Directive – replacing earlier directives and drawing together decisions of the ECJ in legislative form.
• ■ Discuss the impact of the Framework Directive and Race Directive on UK discrimination law and consider whether the Equality Act now moves UK discrimination law more into a social agenda improving conditions generally rather than a pure economic protection which the original Equal Pay Act may have been seen as.
• ■ Reach any sensible conclusion in relation to the quote.