Care Workers And Prison Guards

The difference between health care workers and prison guards in terms of their access to gym membership and private health care may be argued to be a difference in pay. For this, it will have to be proved that the benefits of gym membership and health care come within the meaning of ‘pay’. Jurisprudence within the EU gives a wide definition of pay. Overtime supplements; bonuses; travel facilities; and compensation for trainings and seminars, have all been held to be pay by the European courts. Therefore, it may be argued that the benefits to prison guards are pay, and the difference between the prison guards and health care workers in this respect can be engaged by equal pay jurisprudence.

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The EC Treaty, Article 141(1) provides the duty for the states to ensure the principle of equal pay for men and women for equal work or work of equal value. The term pay has been defined widely in Article 141 (2) to include “ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.” Therefore, pay does not only include minimum wage or salary but also any other consideration in cash or kind. As per the Treaty of Functioning of the European Union (TFEU), Article 157(1), employers are to ensure gender parity in pay. As per Article 157 (2), pay does not only include minimum wage or salary, but also any other consideration, whether in cash or in kind received directly or indirectly in respect of employment. Therefore, as per the definition of pay, benefits may be included.

The Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation (Directive 2006/54/EC) also called the Recast Directive, is relevant to duties of employers to maintain equality between male and female employees. Thus, discriminatory provisions in favour of one group of employees who are all male as against another group of mostly female employees may be argued to come within the scope of the Recast Directive. Moreover, the Recast Directive would require that there should not be discrimination between male and female employees in terms of benefits or other consideration received in respect of employment.

In this situation, there is an indirect discrimination against health care employees, which is related to discrimination where the actual provision may be neutral, but it has the effect of putting a particular gender at a disadvantage. The Recast Directive, Article 4, particularly notes that where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and drawn up in a way that excludes any discrimination on grounds of sex. In this situation, there is a job classification done in the prison as per which both health care workers and prison guards are classified in Category C. However, within this category, the prison guards are receiving additional benefits of gym membership and health care benefits.

Anna will have to prove that health care workers and prison guards are doing comparable work in order to receive same benefits. This is as per the Recast Directive, Article 9 which provides that whether workers are performing the same work or work of equal value, should be determined by having regard to a range of factors including the nature of the work and training and working conditions. With respect to this, classification in the same category does not mean that the work is comparable and of equal value. Therefore, the prison administration may be able to argue successfully that the prison guards and health care workers are not doing comparable work and that this case is not engaged by Article 157.

The policy should not be such that makes an absolute and unconditional priority for appointment or promotion of females to the position. In one case, two candidates were shortlisted (one male and one female) for promotion to a management position in the city's parks department, both being equally qualified; however, the council's rules gave automatic priority to women in sectors where they were under-represented. This policy was considered contrary to EU law. This principle has been qualified in another case, in which it has been held that positive action is lawful if the employer has a 'saving clause' allowing the authority to take into account objective factors specific to an individual man and where the criteria in such a procedure did not discriminate against female candidates. Therefore, for making a policy allowing positive discrimination in favour of female Loxley Prison will have to ensure that they do not make a policy that provides absolute and unconditional priority for appointment or promotion for females, and also that if a policy is made, such policy will have a savings clause that allows the authority to take into account objective factors specific to an individual man does not include any criteria that discriminates against female candidates. Finally, the policy should not be such that it overrides the individual merits, as this was held in Abrahamsson, wherein the court held a positive discrimination policy unlawful because it allowed the promotion of female scientist even though the male scientist was more qualified.

The doctrines of direct effect, indirect effect and state liability have been evolved under EU law in order to provide opportunity to individuals to approach the national courts for enforcing the EU law, which gives specific rights to individuals and are not being enforced in the state. This essay will discuss these doctrines with regard to Anna’s case.

In Van Gend en Loos, the doctrine of direct effect was applied to allow EU law to be invoked directly before the national courts. Direct effect also applies to regulations issued by the EU and the decisions given by the European courts. Directives also come within the purview of direct effect. The doctrine of direct effect is applied to allow individuals to rely on treaty and secondary legislation provisions to bring actions before national courts.

In Van Duyn v Home Office, the ECJ allowed the individual to ask for enforcement of a right provided in the EU Directive. In Pubblico Ministero v Ratti, the court held that individuals can invoke the directive in their domestic courts after the time for implementing the directive has lapsed. In Defrenne v Sabena, the court held that employers are obligated to comply with the requirements EU law.

ECJ developed vertical direct effect, meaning the effect was only as against states and could not be used against individuals, the latter being horizontal direct effect. The principle of vertical direct effect means that the effect is against states and public bodies. In this case, as Anna works for a private prison, horizontal direct effect is applicable because the employer is a private party and not the state. However, as the prison is supervised by the government agencies, Anna may be able to argue for the application of direct effect. In case the argument fails, the doctrine of indirect effect discussed below will become applicable.

TFEU, Article 288 provides that directives are binding as to the result to be achieved upon each Member State, but the national authorities may choose the choice of form and methods for the implementation. The doctrine of indirect effect is applicable where direct effect cannot be applied because the party against whom it is sought to be enforced is a private entity.

The doctrine of indirect effect is applied to allow individuals to ask for remedy in case of loss suffered because of non-implementation of an EU directive. The responsibility to implement EU law has led to the development of indirect effect of the EU law, which also includes directives. The ECJ has considered it to be the responsibility of the national courts to provide legal protection which individuals derive from the rules of EU law and to make these rules fully effective in their states. In this case, Anna can sue WP for failing to pay her for the days she was off work as per the directive.

Suit against UK Government for failing to implement the Directive

In case there is a conflict between the EU law and the domestic law, the EU law can be applied as against the public bodies. However, this may not be applicable against the private bodies. As per the authority laid down in Francovich and Others v Italy, EU law requires the Member States to compensate individuals in case there is a failure on the part of the state to transpose an EU directive into domestic law, provided three conditions are fulfilled in the given situation. The first condition requires that the purpose of the directive must be to grant specific rights to individuals. The second condition is that the content of the rights must be identifiable as per the provisions of the directive. The third condition is that there must be causality between the breach of obligation by the state and the damage suffered by the individual. Each of the three conditions are engaged in the case as the EU directive has provided specifically for right to be paid for 5 days for taking care of children, and the non implementation of the directive in its entirety led to loss of pay for Anna.

The doctrine of state liability is also applicable here as this allows an EU directive to be enforced even in case of horizontal direct effect so that the individual can still claim remedy against the state for not applying the EU directive.

In this case, there is a conflict between Family Friendly Directive and the fictitious Parent Act. As per the law laid down by the EU institutions, in case of conflict the EU directive will apply. If it is argued that the prison is private, it may be argued that the prison is run by a private security company but it is subject to regular inspections by Her Majesty’s Inspectorate of Prisons for England and Wales, the government body responsible for inspecting and reporting on conditions for and treatment of those in prison.

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Table of cases

  • Abrahamsson and Anderson v Fogelqvist (2000) C-407/98.
  • Arbeiterwohlfahrt der Stadt Berlin e.V. v Monika Bötel [1992] ECR I-3589.
  • Bestuur van het Algemeen Burgerlijk Pensioenfonds v G. A. Beune (1994) ECR I‐4471
  • Defrenne v Sabena (No 2) (1976) Case 43/75.
  • Eileen Garland v British Rail Engineering Limited [1982] ECR 359.
  • Francovich and Others v Italy [1991] ECR I-5357.
  • Kalanke v Freie Hansestadt Bremen (1995) C-450/93.
  • Marschall v Land Nordrhein Westfalen (1997) C-409/95.
  • Marleasing SA v La Comercial Internacional de Alimentacion SA (1990) C-106/ 89.
  • Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723
  • NorthWestern Health Board v McKenna Case (2005) C - 191/03.
  • Paola Faccini Dori v Recreb Srl (1994) C-91/92.
  • Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (2005) C-397/01- 403/01
  • Pubblico Ministero v Ratti (1979) Case 148/78.
  • R (Factortame Ltd) v Secretary of State for Transport, [1991] 1 All ER 70.
  • Susanna Brunnhofer v Bank der österreichischen Postsparkasse AG [2001] ECR I-4961.
  • Susanne Lewen v Lothar Denda [1999] ECR 7243.
  • Ursula Voß v Land Berlin (2007) ECR I-10573.
  • Van Duyn v Home Office (1974) C-41/74
  • Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.
  • Books

    • Craig P and De Búrca G, EU law: text, cases, and materials (Oxford University Press 2011).
    • IDS, Equal Pay: Employment Law Handbook (London: Sweet & Maxwell 2008).

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