SEX DISCRIMINATION: RETIREMENT AND PENSIONS

AuthorVivien Shrubsall
Publication Date01 July 1985
DOIhttp://doi.org/10.1111/j.1468-2230.1985.tb00847.x
Date01 July 1985
THE
MODERN LAW REVIEW
Volume
48
July
1985
No.
4
SEX
DISCRIMINATION: RETIREMENT AND
PENSIONS
DESPITE the existence of provisions in the Sex Discrimination Act
and the Equal Pay Act, which exclude from the requirement
of
equality of treatment benefits payable under pension schemes and
terms of the contract of employment in relation to retirement,
cases continue to be brought on the lawfulness of discriminatory
pension and retirement practices. The basis of the recent cases, as
in the earlier case
of
Worringham
v.
Lloyds
Bank
p.l.c.,'
is that
the United Kingdom provisions which exclude the obligation to
afford equal treatment between the sexes in relation to retirement
opportunities and benefits are narrower than the provisions of the
European Economic Community in Article 119 of the Treaty of
Rome, Directive 75/117 and Directive 76/207, that the EEC
provisions take precedence over the United Kingdom provisions
and that they operate to confer rights on individual employees
which are directly enforceable in United Kingdom courts and
tribunals. It is the effect of Directive 76/207 in particular which has
been the crucial issue in the latest group of cases before the
Employment Appeal Tribunal.
The purpose of this article is to assess the impact which the
direct effect of Directives 75/117 and 761207 might have on
discriminatory pensiordretirement practices and the effect of changes
proposed in a new draft Directive.
An employer could discriminate between the sexes on matters
related to retirement in the following ways:
1.
He could provide different conditions of access to his
occupational pension scheme and different benefits under it.
2. Concessions or benefits which are not strictly pension
payments could be made available in retirement to male
employees only or in a more advantageous manner to male
employees than female employees.
3. He could operate an early retirement or voluntary
redundancy scheme which is linked to the different retirement
ages
of
men and women.
'
[1981]
2 All
E.R.
434.
373
374
THE
MODERN
LAW
REVIEW
[Vol.
48
4.
He could require female employees to retire at an earlier
age than that at which male employees are required to retire.
The Sex Discrimination Act
1975
contains the obligation not to
discriminate in employment on grounds of sex but section
6(4)
removes that obligation from “any provision in relation to death or
retirement.” The Equal Pay Act
1970
implies an equality clause
into all contracts, and this clause requires equal terms and
conditions of employment in the contracts of men and women in
certain circumstances but not “in relation to terms related to death
or retirement, or to any provision made in connection with death
or retirement”: section
6(l)(b).
The European provisions contain no such express exclusion for
pension or retirement terms. Article
119
of the Treaty
of
Rome
provides:
“Each Member State shall during the first stage ensure and
subsequently maintain the application of the principle that
men and women should receive equal pay for equal work.
For the purposes of this Article ‘pay’ means the ordinary basic
or minimum wage or salary and any other consideration,
whether in cash or kind, which the worker receives, directly or
indirectly, in respect of his employment from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated
on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the
same job.
The European Communities Council Directive of
1975
on equal
“The principle of equal pay for men and women outlined in
Article
119
of the Treaty, hereinafter called ‘principle of equal
pay,’ means, for the same work or for work to which equal
value is attributed, the elimination of all discrimination on
grounds of sex with regard to all aspects and conditions of
remuneration
.”
The
1976
Directive, which requires equal treatment in access to
employment, vocational training, promotion and
working conditions
provides in Article
5(1):
“Application of the principle of equal treatment with regard to
working conditions, including the conditions governing dis-
missal, means that men and women shall be guaranteed the
same conditions without discrimination on grounds of sex.”
It is against these provisions, English and European, that the
discriminatory pension and retirement practices outlined above
must be judged.
pay provides in Article
1:

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