| EMPLOYMENT — Equal pay — Work of equal value — Pay differentiation depending on length of service — Whether discriminatory — EC Treaty, art 141 EC
Cadman v Health and Safety Executive (Equal Opportunities Commission, intervener) (Case C-17/05)
ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Schintgen, Colneric, von Bahr, Cunha Rodrigues, Klučka, Lõhmus, Levits, Ó Caoimh and Bay Larsen: 3 October 2006
Employers were as a rule entitled to pay workers doing work of equal value differently according to their length of service, but there could be exceptions in particular cases.
The Grand Chamber of the Court of Justice of the European Communities so held on a reference for a preliminary ruling by the Court of Appeal.
Art 141(1) EC enacts “the principle of equal pay for male and female workers for equal work or work of equal value”. The respondent employer’s pay system was based partly on length of service and partly on individual performance. The applicant employee, a woman who was paid less than four male colleagues who did the same job as but had longer service than the applicant, brought a complaint before an employment tribunal. One of the issues raised in the course of the proceedings was whether the Court of Justice’s statement in Handels- og Kontorfunktionærernes Forbund i Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss (Case 109/88) [1991] ICR 74, para 25 that “the employer does not have to provide special justification for recourse to the criterion of length of service” was still good law in the light of subsequent case law, and the Court of Appeal referred questions to the Court of Justice.
THE COURT said that under art 141, the employer had to justify his pay practice whenever there was evidence of discrimination. The justification had to be based on a legitimate objective and be appropriate and necessary to achieve it. The court had held in Danfoss that rewarding experience which enabled a worker to perform his duties better constituted a legitimate objective. On those and further grounds the court ruled: art 141 EC meant that, where recourse to the criterion of length of service as a determinant of pay led to disparities in pay, in respect of equal work or work of equal value, between the men and women to be included in the comparison— (i) since, as a general rule, recourse to the criterion of length of service was appropriate to attain the legitimate objective of rewarding experience acquired which enabled the worker to perform his duties better, the employer did not have to establish specifically that recourse to that criterion was appropriate to attain that objective in relation to a particular job, unless the worker provided evidence capable of raising serious doubts in that regard, and (ii) where a job classification system based on an evaluation of the work to be carried out was used in determining pay, there was no need to show that an individual worker had acquired experience during the relevant period which enabled him to perform his duties better.
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