October 05, 2020
By Maria Kotsoni, a PhD Researcher at the Department of Law of the European University Institute
Recently, the European Committee of Social Rights (ECSR) adopted a series of decisions on equal pay and equality of opportunity between women and men in the workplace. This is the first time the ECSR reviewed states’ compliance on these matters in the context of the collective complaints procedure, therefore establishing comprehensive standards of protection. Following the collective complaints lodged by the non-governmental international organization University Women of Europe, it assessed the compliance with these standards of all the fifteen Member States to the European Social Charter (ESC) that have ratified or acceded to the Additional Protocol providing for a system of collective complaints, namely Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Slovenia and Sweden. The decisions were adopted on 5 and 6 December 2019 and became public on 29 June 2020.
The complainant organization based the alleged violation of the ESC on two main arguments. The first argument addressed the failure of the states to implement the principle of equal pay between men and women, as a gender pay gap still exists despite the existent national and international legal framework. The second argument addressed the under-representation of women in decision-making positions in the private sector, in particular in private companies. These two main arguments were specified for each of the states under assessment in the respective complaints. The ECSR determined a series of obligations for Member States in the fulfillment of their commitments to ensure equal pay and equality of opportunity for women in the workplace.
Recognition, enforcement and promotion of equal pay
The ECSR examined the first scale of the complaints, namely that of equal pay, under Article 4§3 in combination with Article 20c of the Revised ESC. Article 1c of the Additional Protocol of 1988 to the 1961 ESC was employed for the Member States that have not ratified the Revised ESC. The obligations deriving from the above provisions, according to the ECSR’s interpretation, may be divided into, first, the obligation to recognise and enforce the right to equal pay and, second, the obligation to actively promote the right to equal pay.
In order to assess whether the obligation to recognise and enforce equal pay was satisfied, the ECSR assessed four subsequent elements, referring to both the substantive and procedural aspect of the right. The first element is the explicit protection of the right to equal pay in the national legal order. When it comes to the recognition of the right, the obligation of states under the ESC goes beyond the constitutional protection of gender equality. According to the ECSR, a specific legal framework should be laid down in national legislation to establish equal pay for equal work or work of equal or comparable value, the latter being understood as covering not only wages but also benefits and all kinds of remuneration. Any legislation, regulation or other administrative measures that fail to comply with the principle of equal pay must be repealed or revoked.
Secondly, on the procedural aspect of the right, the ECSR examined the availability of effective remedies for victims of pay discrimination. For this obligation to be fulfilled, access to effective remedies must be guaranteed, which includes ‘affordable and timely’ proceedings. In cases where pay discrimination on the grounds of gender has taken place, the entitlement to adequate compensation must be provided. This entails that the amount of the compensation awarded should not be restricted by ceilings. In addition, when someone claims to have suffered pay discrimination on the basis of their gender, the burden of proof must be shifted from the claimant, who has established facts that lead to a presumption of discrimination, to the respondent. Moreover, victims of alleged pay discrimination must be protected from retaliatory dismissals. In the case of retaliatory dismissal, the right to reinstatement and compensation must be provided.
The third element concerned whether pay transparency was ensured in practice and whether the national legal framework allowed for job comparisons and access to relevant data on the part of victims of alleged pay discrimination. This obligation includes the collection of data and the clarification in domestic legislation of the notion of equal work or work of equal or comparable value. It also entails access to information in the context of discrimination proceedings, as well as the possibility of job comparisons, the range of which should not be restricted to the same company.
Fourthly, the ECSR examined the effectiveness of independent equality bodies or other similar institutions in monitoring and promoting equal treatment focused on equal pay.
In its assessment regarding the obligation to promote equal pay, the ECSR considered data available from Eurostat on the gender pay gap for every Member State alone, as well as in comparison to the EU average. Additionally, it determined the obligation on the part of states to adopt positive action measures suggesting gender mainstreaming as a suitable – yet not the only – strategy. Based on the collection and analysis of statistical data, Member States are obliged to adopt policies promoting equal pay, as well as to assess the effectiveness of such policies. In reviewing whether the measures presented by the states under review had been effective, the ECSR relied upon the trends in the gender pay gap, as illustrated in statistical data.
Equal opportunities in the workplace
The ECSR examined the alleged violation of the right to equal opportunities in the workplace under the corresponding Article 20d of the Revised ESC and, for Member States that have not ratified it, under the respective Article 1d of the Additional Protocol of 1988 to the 1961 ESC. The ECSR subsequently elaborated on the obligation of states to actively address vertical segregation in the workplace by means of, but not exclusively, legislation. It held that the introduction of legislation that ensures equal representation in decision-making positions is such a measure that promotes equality of opportunity in the workplace. However, as in the promotion of equal pay, the reference to potential strategies was non-exhaustive. Therefore, available statistical data and trends were considered, as well as the promotion of equal representation through other non-legislative or non-binding measures, such as action plans or codes of corporate governance. As for the participation of women in companies’ management boards, the ECSR referred to the 40% quota proposed by the Parliamentary Assembly of the Council of Europe (PACE) in its Resolution 1715 (2010).
The ECSR’s compliance review revealed that, with the exception of Sweden, the situation in all other fourteen Member States was not in conformity with the ESC. In all the Member States under review, legislation explicitly protects equal pay. However, the failure to ensure pay transparency and job comparisons led to the findings of non-conformity. Apart from France, Portugal and Finland, the situation in all other Member States was found to be in violation of the ESC on these grounds. Another reoccurring basis for non-conformity was the failure to actively promote equal pay. All states, apart from Belgium and Sweden, were in violation of the ESC on these grounds. In some cases, it was also the obstacles to access effective remedies and the failure to establish independent equality bodies that monitor and promote equal pay that were combined to bring about the findings of non-conformity with the right to equal pay.
As for the representation of women in decision-making positions in the private sector, the recommended quota of 40% was only reached in two countries, namely Sweden and Norway. However, the majority of states were found to be in conformity with the ESC on this point. The ECSR relied on states’ efforts to enhance equal gender representation in decision-making positions, as reflected in the relevant trends in the statistical data from 2010 to 2019. Therefore, it was the progress that was assessed rather than whether states reached the recommended threshold of 40%. Where measures had been adopted resulting in gradual increase in the proportion of women in decision-making positions over time, the situation in Member States was found to be in conformity with the ESC. This was the case for Belgium, Finland, France, Italy, the Netherlands, and Slovenia, where the rate of participation of women in management boards was not much lower than the recommended threshold. The same applies for Portugal and Slovenia, where even though the rate was not close to the recommended one, the ECSR considered the progress shown by statistical trends as satisfactory.
In its review the ECSR adopted an approach that integrates previous statements of interpretation and elements assessed in the context of the reporting procedure (see Conclusions I, Statement of Interpretation on Article 4§3, Conclusions II, Statement of Interpretation on Article 4§3, Conclusions III, Statement of Interpretation on Article 4§3, Conclusions V, Statement of Interpretation on Article 4§3, Conclusions VIII, Statement of Interpretation on Article 4§3, Conclusions XIII-3, Statement of Interpretation on Article 1 of the Additional Protocol of 1988, Conclusions XII-5, Statement of Interpretation on Articles 1§2, 4§3 and Article 1 of the Additional Protocol of 1988, Conclusions XX-1, Statement of Interpretation on Article 20). Nonetheless, it further developed the relevant Member States’ obligations, taking into account international and European legal and societal developments.
The ECSR referred to numerous legal sources, found both in international law and in EU law. As far as international law is concerned, the legal sources were UN conventions, in particular the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Economic, Social and Cultural Rights and the Paris Principles, as well as ILO Convention No. 100. In addition to Article 14 of the European Convention on Human Rights (ECHR) and the judgement of Markin v. Russia of the European Court of Human Rights (ECtHR), reference was also made to other bodies functioning within the Council of Europe, given that the Committee of Ministers, PACE and the Commissioner for Human Rights have all urged Member States to take measures that enhance gender equality in the field of employment. EU law has a prominent place in the legal sources employed by the ECSR, which referred to, inter alia, the EU Charter of Fundamental Rights, Directive 2006/54/EC on equal pay, the European Pillar of Social Rights and the extensive case-law of the ECJ.
By combining international and EU law sources, the ECSR assembled a comprehensive legal framework providing for safeguards concerning equal pay and equality of opportunity in the workplace, in light of which it interpreted the corresponding provisions of the ESC. This dynamic interpretation of the ESC, conducted in light of international and European instruments and paying attention to current legal developments, reaffirms that the ESC is a living instrument. Moreover, with its decisions concerned, the ECSR contributed to the uniform development of states’ obligations on the rights to equal pay and equal opportunities in the workplace, as well as in setting clear protective standards.
Beyond enhancing the legal framework protecting gender equality in the workplace, the importance of the ECSR’s decisions also lies in providing a review of the practical implementation of equal pay and equal opportunities in the workplace, in the detail that the collective complaints mechanism allows for as an avenue of monitoring the effective enforcement of social rights. In this regard, the ECSR relied heavily on statistical data as indicators of existence of inequality in pay and opportunity in the workplace on the basis of gender. This methodological approach underlines the importance of official statistical data in the examination of discrimination cases, but also in the efforts to practically tackle gender discrimination in the workplace.
Finally, with the ESC being the counterpart of the ECHR in the field of social rights, the recent case-law of the ECSR complements the case-law of the ECtHR on gender equality, especially that concerned with gender equality in the field of employment and social policy. Even though the ECSR only referred to the landmark judgement of Konstantin Markin v. Russia, the decisions confirm that gender equality is a common aim of Member States under the Council of Europe system, as was stated by the ECtHR in the above decision, a statement that it has repeated since then (e.g. in the case of di Trizio v. Switzerland). In addition, the use of statistical data by the ECSR as proof of the existence of discrimination, an approach that was adopted also by the ECtHR in di Trizio v. Switzerland (see §§ 66 and 88), indicates methodological convergence among these two bodies when it comes to the examination of gender discrimination cases. Finally, the ECtHR itself, in Emel Boyraz v. Turkey (see §29), referred to the ESC as a legal source when adjudicating on matters related to gender discrimination in employment. Without disregarding the different nature of the review conducted by the ECtHR than that of the ECSR, it remains to be seen whether the case-law presented herein will serve in the future as a resource and as an inspiration for the ECtHR in cases concerning gender equality in the field of employment.
In its recent case-law, the ECSR addressed for the first time equal pay and equality of opportunity in the workplace within the context of the collective complaints procedure. With its extensive interpretation, the ECSR set comprehensive and timely standards on equal pay and equality of opportunity between women and men in the workplace. Its findings of non-conformity for the fourteen of the fifteen Member States to the ESC that are subject to review under the collective complaints procedure, suggest that the failure on the part of states to eliminate gender pay gap and gender segregation in the field of employment is a persistent and structural problem shared among European countries. The number of these landmark decisions, as well as the analysis and the findings included therein, place gender equality in the workplace at the forefront of emerging social rights issues.