Terms implied into contracts of employment by statute

The right to equal pay.

The right to equal pay in the Equal Pay Act 1970 came into force at the same time as the Sex Discrimination Act 1975 to avoid any negative effects on women's job prospects.

The Equal Pay Act was drafted to apply to all terms of the contract of employment and not just pay, but excluded death or retirement benefits. The ECJ extended the equality protection through its interpretation of the word 'pay' as including 'all aspects and conditions of remuneration'. This has enabled it to be extended to travel concessions for retired employees; access to occupational pension schemes; age of retirement; pension age, pension benefits and statutory or contractual severance payments. The latter has led to equal rights for men and women, with both now required to carry on until 65.

The Equal Pay Act (EPA) allows men and women to claim equal terms with an employee of the opposite sex employed by the same or an associated employer in respect of (i) like work; (ii) work rated as equivalent and (iii) work of equal value.

'Like work'. A woman is doing like work if it is 'of the same or a broadly similar nature' to that of a man. In Copper Pass v. Lawton [1977], a woman cook in the directors' dining room preparing lunches for 10-20 people per day successfully claimed the same rate of pay as two male chefs working in the staff canteen preparing 350 meals a day in six sittings.

'Equivalent work'. This enables comparisons between totally different jobs to overcome the problem that certain jobs will always be predominantly 'male' or 'female'. Thus if the jobs of the man and the woman have been rated as of equivalent value under a job evaluation study, then the woman is entitled to equal pay with the man. This requires an analytical job evaluation study.

‘Work of equal value'. A claim in respect of work of equal value involves the appointment by the industrial tribunal of an independent expert to investigate the claim. The woman can choose whoever she wishes as comparator and may even choose several.

Defences. The employer has a defence where he can show that the difference is due to a material factor other than sex, including length of service, merit, qualifications and so on.

Maternity rights. Women have (i) a right not to be dismissed on the grounds of pregnancy; (ii) a right to time off for ante-natal care; (iii) a right to maternity leave and maternity pay. The dismissal of an employee is automatically unfair 'if the reason or principal reason for her dismissal is that she is pregnant or any other reason connected with her pregnancy': EPCA.

The right to time off for ante-natal care was inserted into the EPCA 1978, by the Employment Act 1980. There is no qualifying period, the right is to paid time off and relates to ante-natal appointments which the woman is advised to attend by a medical adviser.

Under the Pregnant Workers Directive all workers are entitled to maternity leave irrespective of their length of service. There is a basic right to 14 weeks' maternity leave which can begin up to 11 weeks before the expected date of childbirth. During this time, all the normal benefits of employment must be continued including pension scheme membership, use of a company car and the accrual of holiday entitlement. The employer is not, however, required to pay remuneration. Instead, for so long as the woman has been in employment for 26 weeks, she receives statutory maternity pay (SMP) at the rate of 90 per cent other normal earnings for six weeks and then maternity allowance, the equivalent of statutory sick pay for the remaining period. Employees whose service is too short to qualify for SMP receive a maternity allowance for the whole period.

Women with more than two years' service qualify for up to 40 weeks maternity leave, EPCA; however, most of this extra period is unpaid – unless the employer enhances the statutory rights. The woman receives basic SMP which is the equivalent of statutory sick pay.

Right to time off. These rights relate to (i) time off for ante-natal care (see above); (ii) time off for trade union duties and activities; (iii) time off for public duties; (iv) time off for a redundant worker to seek new employment, and (v) time off for safety representatives.

An employee is entitled to time off to carry out duties as a magistrate, a member of local authority, health authority of hospital trust, a governor of a school, college or university, a member statutory of a tribunal or the National Rivers Authority.

Discrimination on the grounds of race and sex. It is unlawful to discriminate directly or indirectly on the grounds of sex or race. The Sex Discrimination Act also covers discrimination against married people on the grounds of their married status, whilst the Race Relations Act (RRA) prohibits discrimination on the grounds of 'colour, race, nationality and ethnic or national origin’.

Remedies. If discrimination is proved the tribunal has power (a) to make an order declaring the rights of the parties; (b) to require the employer to pay compensation, and (c) to recommend the employer to take action within a specified period to obviate or reduce the adverse effect of the discrimination.