Contracts Against Public Policy Essay, Research Paper
During the last century a great deal of legislation was passed to ? protect women?On the on-going fight for improvement of women as employees.
Improvements involved the effect of restricting their hours of work, their opportunities to engage night work, and the types of work they were legally permitted to undertake.
The purpose of such provision was to provide opportunities for women, and to decrease the level of discrimination.
Discrimination can occur in a number of ways e.g. in the essence of a person who is badly treated, but in regards to this assignment ower main categories will be
Women who are mistreated over there gender rather than they?re physical abilities.
To prevent and remedy these problems the Sex Discrimination Act was set out as part of a legal package with certain objectives even though they are rather mixed.
The specific aims of the package were set out a consultative document and later on in a white paper. The main purpose of such a white paper was to set and make anti-discrimination legislation necessary, however this was not adequate enough to achieve the necessary equality for men and women
The papers main functions of the anti-legislation was to reduce the friction between men and women; the white paper provides, ? the adverse treatment of someone on the grounds irrelevant to that person intrinsic qualities and qualification; to reduce pressures of prejudices, custom and conformity which lead to such differential treatment; to provide remedies for the victim of unfair discrimination and indirectly to change prejudiced attitudes expressed as discrimination.?
The Equal Opportunities Commission which (abbreviated to EOC) is the body which deals with the complaints of discrimination, but however the matter can be addressed to Industrial Tribunals for employment maters or can be referred to the civil courts, if wished by applicant.
It should be pointed out at this particular stage of the assignment that this legislation is not solely for the purpose of perpetuating women?s problems.
Its main priority is with sex discrimination, which not only covers women but discrimination against men.
It should be also noted at this stage that there are two types of discrimination, firstly that of ?direct? and secondly of ?indirect?. Most claims of indirect unlawful discrimination involves an allegation of that the aggrieved person has been refused a job, or not been promoted, or dismissed because of their race or gender. Direct discrimination occurs where a woman is treated less favourably then a man on grounds of her sex, this was seen in the case of Birmingham City Council v Equal Opportunities Commission 1989.
In this case selective single sex education was provided in grammar school for about 5% of Birmingham children ? such selections were based on examination results. However there were more spaces available for boys than girls and girls also required a higher pass rate than that of the boys.
The EOC succeeded in the contention that this constituted unlawful discrimination.
Many key sex discrimination cases have arisen where national courts have referred the matter to the European Court of Justice Art 177 of the EC treatyFor clarification of EC law.
Such cases, from whichever member of they state they originate, become precedent, which all-English courts are bound by to apply.
The second way the in which EC law develops is through the procedure under Art 169, this Article enables the European Commission to bring a Member State before the European Court alleging failure to comply with the treaty obligation.
There are a number of cases which the United Kingdom has been found wanting under this provision. The most important one under the sex equality area is that of Commission of the European Communities v United Kingdom which held that the existing British equal pay law failed to comply with Art 119 and the Equal Pay Directive had no provision for a women to allege that her work was of equal value to that of a man.
A finding of the breach under this procedure does not automatically change domestic law, but both the political pressures and the likelihood of such a claim based on Francovich and others v Italian State Cases 1992, are likely to bring about such changes.
In this instance the law was changed by the Equal Pay Amendments Regulation 1983.
One of the main consequences of the history and sources is that the British Equal Pay Act was passed separately from Sex Discrimination Act. Which has caused uncertainty in determining which of the two acts is involved in a given case, and also in determining the precise relationship between domestic law and European.
While it was clear that as far as possible that they are complementary and should be construed as one code, the courts have not found this practiblily appropriate.
The Equal Pay Act governs ?terms? of the contract under which a women is employed, issues which are taken into consideration are matters which are regulated by the contract of employment, such as hours, holidays, fringe benefits, etc (Defrenne v Sabena 1976). On the other hand the Sex Discrimination act deals with matters which are regulated by the contract, such as job offers which includes promotion and dismissal.
There were certain significant changes between the two acts but their main aim was bring forward equality rather than discrimination.
The original s.3 of the Equal Pay Act, which permitted a claim that a collective agreement was discriminatory, was appealed in 1986. The article 119 of the Treaty of Rome guarantees the application of the ?the principle of equal pay and equal work.?
However the Equal Pay Directives expanded on this definition, declaring that ?the principle of equal pay? meaning is that for the same work or for the work to which equal value is attributed.
In the case of Jenkins v Kingsgate (clothing company) the European court held that the Equal Pay Directives did no more than re-state the contention of the article 119. In the case of Commission of the European Communities v United Kingdom the European Court of held that the U.K equal pay law failed to comply with that of art 119, they said that there was no provision where a complainant could argue that her work was of equal value to that of her chosen comparator.
As a result of the uncertainty the Equal Pay Amendment Regulation 1983, purported to bring British law to coincide with the requirement of Art 119. The equality clause demands that women who are doing work like, or equivalent work, compared to a man who is doing the same job at the same establishment, she should have the same pay and other contractual terms as that of a man.
The major limitation to the clause is that it is no use to those women employees who can find no men doing right work at right place provide with standard of comparison.
This legislation itself marked a major shift away from the British tradition of voluntarism in industrial relations, where-by workplace issues withsome significant exception, in particular health and safety were left to be resolved by the parties without legal intervention.
It should be noted that dismissals that are made on the grounds of pregnancy are classified as unfair under the Employment protection.
Unless it can be shown by the employer that the employee (women) is incapable of doing her job due her pregnancy or because it would be classified as illegal to continue employing her for the same reason.
Another purpose if the S.D Act 1975 was to combat unfair discrimination, and to increase the opportunity for ?equal rights? for women in the area of employment. The European Law saw restriction as breaching the fundamental, which was manifested in the Equal Treatment Directives. This was seen in the case of Marshall V Southampton and South West Hampshire,
Here the complainant was dismissed from work at the age of 62 when a man doing her job would have not retired until 65. However under SDA 1975 such differentiation was regarded as lawful. But it was held to be in breach of the Equal treatment Directives 76/207.
It could be seen that the directives clearly applied to the facts of the case.
However this rule had not been implemented in the U.K and the question was whether she could rely on a directive in an English court. That Directive is subject to two relevant exceptions. The first one is by the virtue of Art 2(2), in relation to occupational activities where ?the sex of the worker constitutes a determining factor? and, secondly, by the virtue of Art 2(3), in the relation to ?provision concerning the protection of women, particular as regards pregnancy and maternity?.
The scope of these exceptions was seen in the case of Johnston v. The Chief Constable of the Royal Ulster Constabulary 1986.
In this case the applicant was a member of the Royal Ulster Constabulary on a full time, fixed term contract.
She performed a number of police duties until 1980, it was the policy of the RUC that women officers should not carry firearms as it would increase the risk of them becoming targets for assassination, it also included that armed police women would be less effective and women would be better sited in areas such as the welfare work.
Bibliography
jeet bhogal
legal rights
women and the law
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