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MOST literature on the sex equality policies of the European Community (EC)(1) is critical on two main grounds. First, the Commission has little to do with substantive equality but is restricted to providing a legal and regulatory framework with in limits determined by the Council of Ministers.(2) Secondly, that framework is directed at men and women as workers, not sex equality in society at large.(3) Such accounts often concede, however, that the existence of Community sex equality policies has profoundly benefited the women of some countries; usually it is Ireland and Greece that are cited but the EC has also had a significant impact upon British women's rights at work and in social security schemes. These improvements often arise from the use made by the Equal Opportunities Commissions of Northern Ireland (EOCNI)(4) and Great Britain (EOCGB) of the European Court of Justice (ECJ), in the context of a domestic political climate that is inhospitable to reform. In making our argument about improvements in the legal status of women in Britain, we do so without ignoring the criticisms of EC policies; that is, we also highlight the difficulties in securing material equality by means which pay inadequate attention to the different social situations of women and men. Part 2 outlines the main legal developments and their underlying legal concepts. Since the scope of rights, as they have developed through the interplay between UK courts and the ECJ, has been covered elsewhere,(5) we concentrate on material aspects of sex (in)equality where there has been a significant EC Influence, then consider EC influence on the enforcement of rights and the Impact of legislation, leading to our conclusion which stresses the importance of a pluralist political realm for the realisation of both legal and social equality.
Legal developments and the underlying concepts
The main legal developments in respect of British women's rights in employment are the Sex Discrimination Act 1975 and its amendments(6) and the Equal Pay Act 1970 and Its amendments.(7) The former applies the principle of equal treatment to non-contractual employment matters, such as recruitment, promotion, training and working conditions (and, in addition, to education and the provision of housing, goods, facilities and services). Direct and indirect discrimination on grounds of sex are prohibited and, in the employment aspects only of the legislation, direct and indirect discrimination on grounds of marital status are also unlawful. Victimization, too, is prohibited. The Act applies equally to women and men, although it is a men, primarily at providing rights for women, who were considered `more likely to be the victims of unfair treatment on grounds of sex'(8). The Equal Pay Act applies to contractual terms and conditions, including pay.
The sex discrimination legislation brought into being the EOCGB and EOCNI which were charged with working towards the elimination of discrimination, promoting equality of opportunity generally between men and women, keeping under review the working of the Equal Pay and Sex Discrimination Act and, when thought necessary by the Commissions themselves or the Secretary of State, submitting to the Secretary of State proposals for amendment to the legislation.
In addition to domestic legislation, the EC has played a critical role in shaping the development of the nature and standards of rights available in the United Kingdom. It has done so through its substantive law and the Jurisprudence of the EC Article 119 of the Treaty of Rome 1957 required member states to Implement the principle of equal pay for equal work and the Equal Pay Directive of 1975 expanded this by obliging member states to bring about equal pay for work of equal value;(9) that is, the standard of the International Labour Organisation. In 1976, the Equal Treatment Directive was adopted, guaranteeing the principle of equal treatment in access to employment, vocational training, promotion, and working conditions. In this Directive, equal treatment entails the absence of direct or indirect discrimination on grounds of sex and in connection with martial or family status.
Three other equally directives have also been adopted by the Council of the EC: in 1979, one concerning the progress implementation of the principle of equal treatment in statutory social security schemes; in 1986, one on the implementation of the principle of equal treatment in occupational social security schemes; and, again in 1986, one about equal treatment for women and men in self-employed occupations including agriculture. Also relevant to women's rights but agreed to under the health and safety framework, the Council adopted in 1992 a Directive about the protection of pregnant women from exposure to hazardous substances at work and about their rights of leave and return to work during and after pregnancy. In addition, there are exhortatory Community principles which seek to promote equality of opportunity; for example, recommendations and resolutions on such issues as sexual harassment, child care, positive action, and funds for vocational (re-) training under the auspices of NOW (New Opportunities for Women) and the European Social Fund.
These developments have taken place in a context where there is considerable legal and political controversy over the meanings of discrimination and the proper scope of action against it.(10) One dominant approach defends the view that the proper aim of the law is to establish fair processes or the elimination of harmful consequences of decisions based on prejudice. This concentrates on securing fairness for individuals by removing arbitrary obstacles which lead to less favourable treatment of one person compared to another. Such an approach presupposes that people start out as equals, with the same freedom to make choices about their destinies, or would be so if arbitrary barriers were removed. Thus it requires the equal treatment of women and men in similar situations and expects that this will bring about similar chances of success.
A second approach is more concerned with the effect of decisions and practices on groups. Here, it is thought that the proper aim of the law is to ensure an improvement in the social and economic position of disadvantaged groups, or a redistribution of benefits and opportunities from advantaged groups to disadvantaged ones. The …