Employers must be able to prove that women’s lower wages are attributable to their lesser experience and professional skills due to their generally shorter service time, the Court of Justice has ruled.
The Court of Justice ruled that, as a general rule, employers can use service time to determine their employee’s payment level without any further justification, because “recourse to the criterion of the length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better”.
However, a payment scheme based on service time is not necessarily in contradiction to the principle of equal payment for men and women. However, if a worker raises doubts as to length of service time being a valid criterium for determining workers’ experience and professional skills, the employer must justify why he thinks it is valid.
In any case, statutory maternity-leave counts as working time, whereas additional periods of time taken off, for instance for the purpose of raising children, do not.
Cadman told the Guardian that her case was "not about winning compensation, but about recognition that women should not be paid less than their male counterparts".
Leena Linnainmaa, the president of the European Women Lawyers’ Association, suggested, in the Times newspaper, that the situation would only become fairer for women when men took more paternity leave, something most did not do even though they had the right to in most European countries. "The fact that women take maternity leave is a great burden on their career," she said. "We strongly encourage men to take paternity leave and the countries that have no specific legislation on the right to paternity leave to amend their law."
Article 141 of the EC Treaty stipulates that "each member state shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied". However, male colleagues of British health inspector Bernadette Cadman, although on the same professional grade as her, were paid up to 9,000 pounds sterling (around 13,300 euro) a year more than she was.
Cadman works as a health inspector for the UK Health and Safety Executive (HSE), which is, ironically, in charge of promoting gender equality in the workplace within the UK. THe HSE applies a system of pay increases that rewards length of service. In the case of Cadman, the HSE justified her lower wages because of the time she had taken off to raise her children had not contributed to her professional experience.
Back in 2001, Cadman sued the HSE before an UK employment tribunal, which in first instance ruled in her favour. The HSE appealed against the ruling, however. The Employment Appeal Tribunal was along the same lines as the 1989 Danfoss case. In that case, the court judged that, as a general rule, no special justification is required where unequal payment results from different lengths of service being taken into account.
In 2003, Cadman appealed against the decision of the Employment Appeal Tribunal to the UK Court of Appeal, and also got support from the UK Equal Opportunities Commission. The Court of Appeal found that the use of length of service as a determinant of pay has a disproportionate impact on women, because they have on average shorter service time than men. It confirmed that length of service as a determinant of pay plays an important part in the gap between female and male workers.
As this gap continues to exist, the Court of Appeal asked the European Court fo Justice whether its case-law from the Danfoss case is still valid in that ‘the employer does not have to provide special justification for recourse to the criterion of length of service’.
EU official documents
- Court of Justice:B.F. Cadman against Health & Safety Executive
- Official Journal C:Reference for a preliminary ruling in the case of B.F. Cadman against Health & Safety Executive(19 March 2005) [FR] [FR] [DE]
- Court of Justice:Judgment in teh Danfoss case(17 October 1989) [FR] [FR] [DE]
- EUR-Lex:EC Treaty, Article 141
- EUR-Lex:Equal pay directive(10 February 1975) [FR] [FR] [DE]