Employment Equality in UK Law

In the second place section 2(4) refers to a claim in respect of the operation of "an equality clause relating to a woman's employment." That equality clause is a clause in a contract of employment which as I see it can only be the specific contract in respect of which the claim is made and which for the purposes of the Industrial Tribunal's jurisdiction must cover employment which has ended within six months of the claim before the Industrial Tribunal.

Second, within the latter class, the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The other kind are self-employed people who provide their services as part of a profession or business undertaking carried on by some-one else.

The Court held, following Lawrie-Blum v Land Baden-Wurttemberg ( Case C-66/85) [1987] ICR 483 that "there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration" (para 67). However, such people were to be distinguished from "independent providers of services who are not in a relationship of subordination with the person who receives the services" (para 68).

The application of these principles presents a challenge when one is dealing with entitlement to an occupational retirement pension. Conventionally, the right to a pension accumulates over decades. During the time that the right is accruing, actuarial assumptions are made based on existing legal conditions, notwithstanding that the pension is payable in the future. Those assumptions are upset when, because of changes in social values, a new equal treatment provision is introduced.

The point of unequal treatment occurs at the time that the pension falls to be paid. Whether benefits referable to those contributions are to be regarded as "deferred pay" is neither here nor there, so far as entitlement to pension is concerned. Mr Walker was entitled to have for his married partner a spouse's pension at the time he contracted a legal marriage. The period during which he acquired that entitlement had nothing whatever to do with its fulfilment.

The essential questions in each case are therefore those identified in paras 67 and 68 of Allonby [2004] ICR 1328, namely whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services.

In my opinion there must be implied in paragraph ( c) after the word "applies" the words "as between the woman and the man with whom she claims equality." The employer's construction is inconsistent with Community law and creates a permitted form of discrimination without rhyme or reason.