The Equal Pay Act 1970 : an Act suitable for the 21st century? : an analysis of the origins and aetiology of the Equal Pay Act 1970, its subsequent amendment and judicial interpretation and an assessment of whether this Act may still fulfil a relevant function and purpose in the 21st century
That inequality of pay between the sexes persists today, primarily as a result of structural inequality and particularly occupational segmentation, provides the starting point for an examination and analysis of the Equal Pay Act 1970. Its historical origins and aetiology are traced and its development and interpretation are critically examined to provide a conclusion as to its current interpretative status, relevance and effectiveness. The thesis is founded on two critical themes. Firstly, it is argued that insofar as reducing inequality in pay is concerned, legislation can only have a partial effect and commentators claiming that the Act has failed to achieve its purpose omit to take into consideration certain sociological and cultural factors which have effects which cannot be struck at legitimately within the compass of such a legislative instrument. It is contended that proponents who argue for a widening of the scope of equal pay legislation with the purpose of eliminating structural inequality conflate two constructs; legislation aimed at achieving 'fair wages' and legislation aimed at eliminating sex discrimination in pay and that it inappropriate to attempt, jurisprudentially, to achieve the former via the latter. The second critical-theme develops the thesis that the open textured nature of the domestic Act has, with limited need for amendment, been able to be interpreted flexibly, thereby striking effectively at subtle forms of pay inequality not contemplated by policy makers or the legislature until long after enactment, thus it remains an effective instrument, not a failed measure requiring repeal and replacement. What links the two critical themes is that equal pay law is currently at a crossroads following textual omissions and lack of express clarity in two recent judgments of the European Court of Justice, which if interpreted literally by domestic tribunals and courts, have the potential to distort the purpose of the Equal Pay Act transforming it from an instrument for removing pay discrimination attributable to sex (insofar as legislative intervention ever could) into an instrument of social engineering in the hands of claimants seeking 'fair wages' in the absence of any sex discrimination; no matter how laudable such a social aim, it is contended that would be an inappropriate jurisprudential consequence.