Annex 1: Gender Neutral Job Evaluation and Classification Systems

1. Introduction

The EU's commitment to eliminating inequalities and promoting equality between women and men is laid down in Article 8 of the Treaty on the Functioning of the European Union ('TFEU') and Article 3(3) of the Treaty on European Union., The principle of equal pay was enshrined in EU law from its origins and further developed by the Equal Pay Directive 75/117/EEC[1], which introduced the concept of equal pay for work of equal value.

This principle is now embodied in Article 157 TFEU and incorporated in Article 4 of Directive 2006/54/EC on equal treatment between women and men[2]. The Directive provides that: ‘for the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated. In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on the grounds of sex’.

The gender pay gap measures the difference in average gross hourly earnings paid to men and women across the whole economy and in all establishments. Statistics show a persistent gender pay gap that in 2011 averaged 16.2 % for the 27 EU Member States[3]. This trend persists despite significant progress in women’s educational achievements and work experience[4]. Women are now outperforming men in terms of educational attainment, with 40.0% of women aged 30-34 having completed tertiary education compared to 31.6% of men in 2012[5].

The causes of the gender pay gap are complex. They include not only direct or indirect pay discrimination, but also: more difficulties for women in reconciling paid work and private life; segregation of the labour market; stereotypes that influence the evaluation and classification of jobs and the educational choices men and women make[6].

Addressing the gender pay gap thus requires a multi-faceted approach, addressing underlying factors such as sectoral and occupational segregation, education and training, job classifications and pay systems, awareness raising and transparency.

2. Purpose of this Annex

The use and application of gender-neutral job evaluation and classification systems can help to improve human resources management and work organisation practices in companies[7] in terms of:

staff recruitment and selection: they help to give a more detailed, up-to-date pic­ture of job content, i.e. the real demands of a job in terms of skills, responsibilities, effort and working conditions, based on systematised, accurate information. It facilitates the recruitment of the right person for the job, reducing costs incurred by staff turno­ver due to poor selection or lack of awareness of the real demands a job entails; vocational training: they help to identify areas where training is needed to impro­ve performance; performance evaluation: by improving understanding of the factors and sub-factors that make up a job, there can be more objective performance evaluation criteria that, as management tools, can help to improve business productivity and competitiveness. This can have a positive impact on jobholders’ quality of life and satisfaction; collective bargaining: they reinforce the process by providing objective criteria agreed by both parties. Applying an evaluation method presupposes the active involvement of representatives of both the workforce and the management of an enterprise; pay: by defining a ranking order based on the real content of jobs, the question of whether pay is proportionate to skills, responsibilities, effort and working conditions can be addressed from the perspective of equal pay for work of equal value; health, safety and hygiene at work: they can provide information that can help to alleviate or eliminate the arduousness of certain jobs.

Job evaluation systems are not discriminatory per se, but they may, if not used in a gender neutral manner, contribute to the gender pay gap by evaluating male and female dominated jobs differently, for example, by assuming traditional stereotypes[8]. When gender-neutral job evaluation and classification systems are used, they can support credible definitions of work of equal value and detect indirect pay discrimination on grounds of sex.

Some Member States’ national laws and policies have established gender neutral job evaluation systems. Some Member States ensure in their national laws[9] or collective agreements[10] that job evaluation and classification systems used for determining pay are gender neutral, while others[11] have issued soft-law tools (non-binding guides, check-lists) to encourage equal treatment in job evaluation and classification. However, developing and using such gender-neutral job evaluation and classification systems is not widespread yet at national level.

This Annex is primarily a practical tool for employers, social partners and other relevant stakeholders to use in establishing gender-neutral job classification systems. It aims to provide assistance in establishing gender-neutral job evaluation and classification systems to ensure they exclude any indirect discrimination on grounds of sex. It also aims to raise awareness among relevant stakeholders throughout the EU with a view to promoting and increasing the use of gender-neutral job classification systems.

The document proposes an up-to-date methodology for establishing gender neutral job classification and evaluation systems. This includes recommendations on gender-neutral job evaluation factors, their weighting and scoring methods, as well as practices to be avoided.

The document takes into account the Commission’s 1996 Code of Practice on Equal Pay for Work of Equal Value[12], while considering changes in the labour market as well as relevant jurisprudence of the Court of Justice of the European Union ('CJEU'). It also takes into account best practices in Member States and EFTA/EEA countries in the field of equal pay, as well as materials developed by the International Labour Organisation.

The Commission services consulted the social partners on this document. The views proposed by the social partners were, as far as possible, reflected in this instrument.

3. Gender-neutral job evaluation methods

There are many variations in job evaluation methodologies used worldwide. However, basic general methods of job evaluation are: ranking[13], classification[14], factor comparison[15] and points[16].

Analytical job evaluation methods based on comparison of different factors, taking into account of their importance and complexity, enable the position of a job to be established in relation to another in a sector or organisation, regardless of whether the job holder is a man or a woman. Methods should be designed so that all positions or groups in an organisation can be assessed using the same job evaluation system, enabling comparisons across disciplines and professional boundaries[17]. The analytical job evaluation methods, being systematic and complex, have the potential of being less discriminatory than non-analytical methods and they are therefore considered to be most appropriate for job evaluation in a gender equality context. They can thus be used to establish one of the most important components of the equal pay principle, namely ‘work of equal value’. This is the basis of the methodology presented in this section.

Analytical job evaluation methods break job content down into a number of factors that enable jobs to be compared in a non-discriminatory manner, provided that the selected factors themselves are not discriminatory. These factors are criteria for assessing the various dimensions and characteristics of jobs and should be applied equally to all jobs to determine their relative value.

The CJEU has held on several occasions that determining what work of equal value is involves comparing the work of a female employee and a male counterpart by reference to demands made on workers in carrying out given tasks. Skills, effort and responsibility, or the work undertaken and the nature of the tasks involved in the work to be performed[18] must be taken into account.

3.1 Gender-neutral job evaluation factors

In line with this case-law, most analytical job evaluation schemes used across Member States consider four main factors to evaluate jobs, regardless of sector, namely:

(i) skills,

(ii) responsibility,

(iii) effort,

(iv) working conditions.

These four factors are essential, and are sufficient for evaluating in a gender-neutral manner all tasks performed in an organisation, regardless of the sector to which it belongs. The factors are also consistent with those used in the ILO 2008 guide[19].

(i) Skills

Skills comprise the knowledge, abilities and attitudes required to carry out a job. They cover three types of capabilities and their respective learning domains, namely:

- cognitive domain (knowing how to learn);

- psychomotor domain (know-how); and

- behavioural domain (knowing how to behave).

These capabilities can be acquired in many different ways, for example, through theoretical learning, practical training, work experience, professional employment, self-study or a combination of these.

Skills include the ability to interact and relate to different groups (internal groups: peers, subordinates and su­pervisors at work, and external groups: clients and suppliers of goods and services), and sensory and physical abilities, such as manual dexterity, ability to work fast, etc. [20]

The length of time it takes to acquire the knowledge needed is used as a measure of the level of theoretical training and the depth of experience required to perform the work. When assessing the requirements for problem-solving and social skills, on the other hand, the different aspects that make up these factors are evaluated holistically. For the purpose of evaluation, what matters is the combination of the number of skills required and the degree to which they are required[21]. These skills need to be considered only if they are relevant to a particular job.

(ii) Responsibility

There are different types of responsibility. Overall responsibility is often referred to as formal responsibility and can therefore disregard de facto, informal responsibility. However, responsibility is not always exercised by the person formally responsible.

Actual responsibility requires knowledge of how the task is to be performed and often entails physical involvement or activity. Unlike formal responsibility, actual responsibility can be shared with others. It can also be exercised for a limited period of time. A job may require different kinds of responsibility, sometimes simultaneously[22].

Responsibilities may involve:

– People — for example, health and safety, coordination, supervision, collaboration and work organisation;

– Goods and equipment (machinery, products and utensils used at different stages of a work process);

– Information;

– Financial resources.

(iii) Effort

Effort is the employee’s response to the workload assigned to them — the term load being used here in the sense of all the influences to which people are subjected in the workplace.

(iv) Working conditions

‘Working conditions’ refer to all the characteristics of the process (e.g. the task at hand, the person, necessary means for the work, work process, input, output and influences), and to all the environmental influences that affect the person undertaking a task, positively or negatively.

Other factors to be taken into account include discomfort the employee may face because of the physical, psychological or social environment, and the risks of injury or illness due to the tasks themselves or because of the environment in which they are carried out.

The assessment of these factors will depend on how long and how often the employee is exposed to them and whether he or she can influence/mitigate these. When making the assessment, it is assumed that health and safety regulations in place are actually observed[23].

3.2 Gender-neutral sub-factors

Each of the four factors can be broken down into sub-factors capturing the characteristics of different jobs in greater detail. In general, sub-factors must meet three conditions: they should be appropriate to the sector concerned, methodological and not have any gender bias.

The number of sub-factors may vary according to the information needed to characterise jobs as accurately as possible. It is not possible to provide a complete overview of all possible sub-factors as there is no standard set applicable to all jobs.

Nevertheless, by way of illustration, sub-factors of a general nature that could be used in different sectors are outlined below:

Sub-factors related to skills[24]:

(1) Knowledge (know-how)

This sub-factor assesses the level of experience, formal education and basic skills necessary to meet the requirements of a job. Skills and knowledge may be learned on the job, off the job and/or through education.

(2) Interpersonal Skills (how to behave)

This sub-factor assesses the requirement to deal effectively with people both within and outside the organisation. It considers the type, importance and purpose of contacts and the degree of interpersonal skills required.

(3) Problem-Solving (how to learn on the job by solving problems)

This sub-factor assesses the problem-solving/judgment required on the job. It assesses the difficulty in identifying possible options and in exercising judgment to select the most appropriate action. It also considers mental processes such as analysis, reasoning or evaluation.

Sub-factors related to responsibility:

(1) People

This sub-factor assesses the extent to which key activities and responsibilities are achieved through the direction, management, education, training, evaluation and motivation of others.

(2) Goods and Equipment

This sub-factor assesses the degree of responsibility for the collection, storage, retrieval, safe use and maintenance of material resources including office equipment, supplies, products and machinery required to perform a job. It also measures the value and nature of involvement with the resources.

(3) Information

This sub-factor assesses the degree of responsibility for the collection, storage, retrieval, interpretation and maintenance of information/data/files required to perform the job. It also assesses the nature of the involvement with the information.

(4) Financial resources

This sub-factor assesses the degree of accountability for money, financial data, financial records and related decisions, and the acquisition and/or expenditure of funds.

Sub-factors related to effort:

(1) Mental and Psycho-Social Effort

This sub-factor assesses the duration and intensity of mental and psycho-social effort required to perform the job. Mental and psycho-social effort is related to the amount of concentration and attentiveness required, both in terms of thinking, watching and listening. All tasks requiring concentration and dealing with unexpected situations should be considered.

(2) Physical Effort

This sub-factor assesses the duration and intensity required to perform the job. Physical effort is related to physical demands on the body or the energy required to perform tasks such as standing, walking, lifting, typing or remaining in one position for long periods. One should be careful when applying this sub-factor to avoid indirect discrimination.

Sub-factors related to working conditions:

(1) Environment (physical, psychological or emotional)

This sub-factor assesses the nature and severity of the working conditions and hazards that have an impact on the job.

(2) Organisational environment

This sub-factor measures the duration of a working day, night shifts and irregular working hours.

3.3 Weighting of job evaluation factors and job classification

After establishing gender-neutral factors and sub-factors, the next step in job evaluation is to weight the factors and sub-factors, by assigning points to them to establish their relative importance.

The weighting of different factors and sub-factors is a subjective process, so there is a risk of sex discrimination at this stage, through, for instance, gender-based stereotypes. For example, those in charge of weighting might be inclined to assign a high weight to some factors, simply because they are representative of male-dominated posts[25].

The organisation should be able to justify assigning a particular set of weightings by reference to the importance of the factors to the organisation as a whole[26]. The assignment of point scores must take into consideration the sector’s and/or the company’s mission and the relative importance of each factor and sub-factor for the success of the organisation/sector in the terms of that mission.

Different organisations have different values depending on the management and goals of the business and the work being performed. This should be reflected in the weight given to the various factors. The weighting process is far more than a mere technical task: the parties that interact in the sector/company[27] need to consider them carefully.

Job evaluation systems can weigh the consolidated values of the four main factors (skills, responsibility, effort and working conditions) by multiplying the total value of each factor with a specific coefficient (e.g. skills 40 %, responsibility 20 %; effort 20 %, and working conditions 20 %). This is called external or visible weighting.

After weighting the four main factors, each sub-factor is assigned an internal weight as a percentage of the weight allocated to its main factor. This procedure is called inner weighting or hidden weighting.

Once weighting is completed, each job position is assigned a number of points for each factor and sub-factor. The jobs are then classified into the groups according to their value, to determine the pay level of each job.

Below, some potential discriminatory practices to be avoided are considered.

4. Job evaluation practices to be avoided

Job evaluation systems are used to classify jobs and could be the source of indirect pay discrimination on the grounds of sex, if not based on fair, non-gender based criteria.

By way of example, the following bad practices in existing job evaluation and classification systems should be avoided:

(1) The use of different evaluation systems within a company, e.g. for professionals and non-professionals.

(2) Failure to examine whether the catalogue of requirements includes those generally associated with typically male as well as typically female jobs.

(3) Failure to evaluate typically female job requirements, e.g. psycho-social competences and responsibilities. Some requirements considered traditionally as ‘female’, e.g. ‘care’, are often undervalued or overlooked. It is important to include all qualifications, no matter how they have been acquired, and to assess how these qualifications correspond to the requirements of the specific job being evaluated.

(4) The use of different evaluation criteria for male- and female-dominated tasks, as e.g. ‘necessary muscular strength’ only as criteria for male-dominated laymen/laywomen workplaces, but not for female-dominated professional workplaces. The criterion itself may be discriminatory and should then be compensated by other criteria[28].

(5) Double assessment of the same requirement, e.g. ‘necessary muscular strength’ and ‘continuous physical strength’, which would favour male dominated jobs.

(6) Disproportionate weighting of the requirements which are typical for male-dominated jobs, e.g. ‘muscular strength’ or discriminatory interpretation of requirements such as ‘responsibility’ only as ‘managerial responsibility’, even if certain jobs require other types of responsibility.

(7) Defining ‘responsibility’ of a job solely by hierarchical position, e.g. some female-dominated jobs (HR managers or teachers) have their level of responsibility disregarded.

(8) The ambiguous definition of requirements that could be interpreted against female-dominated jobs — example: just ‘work load’ instead of describing more precisely the kind of work load.

(9) Linking of requirements, e.g. ‘special responsibility’ is only assessed if the requirement ‘specialised knowledge’ is evaluated.

(10) Assessment of requirements, e.g. ‘responsibility’ only if they account for a certain share of the whole working time, e.g. 50 % of the daily working time.

5. Follow-up action

Once job evaluation and classification systems based on gender-neutral criteria are in use, there needs to be follow-up to monitor the results.

A committee to implement the job evaluation could be set up, with members representing all relevant parties, including employees. This may be particularly useful in bigger organisations. A committee can contribute a broad range of knowledge about different employee groups in a business, and the results of its work are more likely to be perceived as fair and acceptable for all concerned.

National equality bodies could be asked to play a role in this monitoring exercise[29].

Regular reviews are then recommended to monitor whether the principle of equal pay for work of equal value is being applied.

Below are some examples of possible follow-up action:

– establishing new gender-neutral job evaluation and classification systems in organisations;

– modifying or adapting an existing job evaluation method in an organisation or sector (e.g. by addressing shortcomings identified in the assessment);

– redefining and re-evaluating formal qualifications (e.g. certain skills which women are likely to acquire in an informal manner could be taken into account and put on an equal footing with formal skills that are traditionally male);

– re-evaluation of skills traditionally associated more with women than with men (e.g. manual dexterity);

– ensuring dissemination of clear, adequate information on the results of job evaluation in the company, so that employees can assess its contents (i.e. transparency).

Annex 2: Overview of landmark Case-law of the Court of Justice of the European Union on Equal Pay

1. Introduction

Equal pay for equal work for women and men is one of the EU’s founding principles, embedded in the Treaties since 1957.

Article 119 of the Treaty establishing the European Economic Community ('TEEC') laid down the principle of equal pay for women and men. In 1997, with the Amsterdam Treaty, Article 119 became Article 141 of the Treaty on the European Community ('TEC'). Today after the Lisbon Treaty, the principle of equal pay is enshrined in Article 157 of the TFEU but its wording has remained unchanged. The provision stipulates that ‘each Member State must ensure the principle of equal pay for male and female workers for work of equal value is applied’.

The principle of equal pay was further amplified and specified by EU secondary legislation and the case-law of the CJEU. Directive 75/117/EEC, which was replaced by Directive 2006/54/EC, reiterated the Treaty concept of equal pay for equal work and work of equal value and provided some more detail, including on requirements to ensure access to justice and protection against victimisation.

Article 4 of Directive 2006/54/EC provides that for the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated. This provision also stipulates that in particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.

Furthermore, in line with the TFEU and the jurisprudence of the CJEU, Article 2(1)(e) of the Directive provides an extensive definition of pay, describing it as the 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/her employment from his/her employer.

The case-law of the CJEU has helped to clarify and further develop the interpretation and scope of the principle of equal pay. In particular, in its landmark Defrenne II judgment[30] the CJEU has declared that the principle of equal pay enshrined in the Treaty is one of the fundamental principles of the Community and has a direct effect, therefore can be invoked by any citizen in front of national jurisdictions. The CJEU passed judgments on equal pay provisions on several occasions, resulting in a large body of case-law which has had a marked impact on the law in this area.

However, the EU’s legal provisions on equal pay and the jurisprudence address questions of considerable complexity, in particular with regard to the principle of equal pay for work of equal value which implies the intricate task of assessing the value of different types of work. It is crucial for individuals to have the possibility to understand exactly the scope of rights granted under these provisions so that they can rely on this principle before the national courts. The correct interpretation of the different elements forming the equal pay principle is also important for the effective application of equal pay provisions by employers and social partners in the context of pay systems and collective agreements.

This overview of the case law provides an synopsis of the CJEU’s interpretation of the principle of equal pay and its different elements. The overview, together with the Annex 1 on gender neutral job evaluation and classification systems, aims to facilitate and promote the effective application of this principle in practice by the relevant stakeholders at national level. The overview is offered for information and consideration to all relevant stakeholders, including employers, social partners, employees, Member States and national judiciaries.

The overview of the case law draws on the Commission’s 1994 Memorandum on Equal Pay for Work of Equal Value[31]. It provides a comprehensive overview and analysis of the CJEU’s landmark cases on equal pay, covering the definition of pay, the meaning of the concept of work of equal value as well as discrimination in job classification and evaluation.

2. Definition of pay

The definition of pay is enshrined in Article 157(2) of the TFEU and is also provided in Article 2(1)(e) of the Directive. The CJEU has repeatedly held that the concept of pay within the meaning of Article 157 TFEU encompasses all benefits in cash or in kind, present or future, provided they are paid, directly or indirectly by the employer to the worker in connection with his employment[32]. Over the years, the CJEU has had various occasions to comment on the concept of ‘pay’ and to clarify its scope.

2.1. Basic and additional pay

The CJEU held that a gradual increase in the salary of a worker who remains in the same position for a certain period of time provided for by a collective agreement (C-184/89 — Nimz[33]) and piece-work pay schemes (C-400/95 — Royal Copenhagen[34]) constitute ‘pay’.

The fact that payments to employees are not governed by the contract of employment does not remove them from the scope of ‘pay’ in ex-Article 119 TEEC (now Article 157 TFEU). Gratuities paid at the discretion of an employer are encompassed (case 12/81 ­– Garland[35]). Therefore pay, whether under a contract, statutory or collective provisions or on a voluntary basis is covered.

Moreover, the CJEU found that several payments additional to basic and minimum pay fall within the scope of ex-Article 119 TEEC, such as individual pay supplements (calculated on the basis of such criteria as mobility, training or the length of service of the employee) to basic pay (case 109/88 — Danfoss[36]) and increments based on seniority (case C-184/89 — Nimz[37]) as well as ‘heads of household’ allowances granted to civil servants (case 58/81 — Commission v Luxembourg[38]). It would appear that any direct payments supplementing a basic wage are covered. This would appear to include overtime and all forms of merit and performance pay.

In addition, time off with pay for part-time employees undertaking Works Council training, pay for overtime in respect of employees’ participation in training courses or compensation received by members of trade unions from their employer in the form of paid holidays was also considered to constitute pay and to fall within the scope of application of ex-Article 119 TEEC (C-360/90 — Bötel[39], C-457/93 — Lewark[40], C-278/93 — Freers[41]).

The same applies to a monthly salary supplements agreed on in individual employment contracts (C-381/99 — Brunnhofer[42]) and wages for additional hours (C-285/02 — Elsner[43]).

2.2. Benefits

Benefits calculated in monetary terms, such as sick pay allowances, constitute pay (case 171/88 — Rinner[44]). The same applies to the benefits paid by an employer under legislation or collective agreements to a woman on maternity leave (C-342/93 — Gillespie[45]), as well as to an allowance for female workers taking maternity leave which is designed to compensate for the professional disadvantages which result from these employees’ absence from work (C-218/98 — Abdoulaye[46]).

The following count as pay: pensions, travel facilities obtainable on retirement, severance schemes (12/81 — Garland[47], C-249/96 — Grant[48], C-262/88 — Barber[49]), end-of-year bonuses that an employer pays to an employee under a law or collective agreement as a gratuity at Christmas (C-281/97 — Krüger[50]), ‘even if paid voluntarily and even if paid mainly or exclusively as an incentive for future work or loyalty to the undertaking’ (C-333/97 — Lewen[51]).

The same applies to benefits an employer pays to an employee on compulsory redundancy, whether under a law or voluntarily (C-262/88 — Barber[52]), and to severance grants paid to workers, including those working part-time, on termination of their employment relationship, in particular on account of retirement (C-33/89 — Kowalska[53]) and additional redundancy payment (C-173/91 — Belgium[54]).

This also covers a bridging pension that an employer may pay to employees who have taken early retirement on grounds of ill health (C-132/92 — Birds Eye Walls[55]) and to wages for a bridging allowance provided for by a work agreement (C-19/02 — Hlozek[56]).

The compensation granted to the worker for unfair dismissal ‘falls within the definition of pay for the purpose of [ex-] Article 119 TEEC’, since it ‘is designed in particular to give the employee what he would have earned if the employer had not unlawfully terminated the employment relationship’ (C-167/97 — Seymour-Smith[57]).

Moreover, the CJEU found that pay can include benefits received by persons performing military or compulsory civilian service (C-220/02 – Österreichischer Gewerkschaftsbund[58]). For example, if they receive a termination payment, they may subsequently be able to claim this is part of their pay within the meaning of ex-Article 141 TEC (now Article 157 TFEU).

2.3. Social security benefits

The question of whether benefits under social security schemes have to be considered as pay within the meaning of ex-Article 119 TEEC was addressed by the CJEU in the Defrenne I judgment[59]. In this judgment, the CJEU excluded statutory social security schemes from the concept of ‘any other consideration’ of ex-Article 119 TEEC. The CJEU ruled that the concept of consideration paid directly or indirectly, in cash or in kind, could not encompass statutory social security scheme benefits that apply to workers in general and are not provided for in an agreement within a specific company or industry. The CJEU noted that, to fund such schemes, workers, employers and public authorities contribute in line with social policy rather than in compliance with an agreement covering the employer-employee relationship. It thus concluded that statutory social security schemes could not be include in ‘any other consideration’. This was particularly true of retirement pensions, determined by statute rather than by agreements in the workplace or industrial sector[60].

However, company occupational pension schemes, for instance, are included, as they are not enforced by law. They involve reaching an agreement within a company or industrial sector, and are not compulsory for workers in general, only for those covered within a specific organisation. They are financed by employers or workers who contribute directly, depending on the schemes’ funding requirements, not according to social policy.

In a more recent judgment, the CJEU confirmed the implicit Defrenne I ruling, namely that only benefits deriving from a statutory social security scheme were outside the scope of ex-Article 119 TEEC (case 70/84 — Bilka-Kaufhaus[61]). Accordingly, the CJEU ruled that an occupational pension scheme funded by the employer constitutes pay for the purposes of ex-Article 119 TEEC.

2.4. Occupational social security schemes

The CJEU has also clarified the scope of ‘pay’ in its numerous rulings, in particular in relation to occupation social security schemes.

In the Barber judgment[62] and the subsequent jurisprudence the CJEU confirmed its earlier case-law in Bilka[63], that ruled that benefits and employee contributions under the terms of an occupational pension scheme fall within the concept of pay.

Therefore, it appears that benefits under occupation social security schemes constitute pay under Article 157 TFEU. Only pensions paid by the state acting as such are excluded from the scope of this provision.

In the Barber judgment the CJEU upheld what was implicitly stated in its judgment in Defrenne I, mentioned above, i.e. benefits granted under a pension scheme, which essentially relates to a person’s employment, form part of that person’s pay and come within the scope of concept of pay within the meaning of ex-Article 119 TEEC.

The CJEU included benefits awarded under an occupational scheme that take the place of the benefits that would have been paid by a statutory social security scheme (C-7/93 — Beune[64]) as well as compulsory additional pre-retirement payments (C-166/99 — Defreyn[65]).

Furthermore, the CJEU ruled that the following also qualified as pay: ‘a contribution to a retirement benefits scheme which is paid by an employer in the name of employees by means of an addition to the gross salary and which therefore helps to determine the amount of that salary’ (case 69/80 — Worringham[66]; case 23/83 — Liefting[67]) and the reduction in net pay because of a contribution paid to a social security scheme without affecting the gross pay (case 192/85 — Newstead[68]) as well as the right to join an occupational pension scheme (C-57/93 — Vroege[69]).

However, the use of actuarial factors differing according to sex in funded defined-benefit occupational pension schemes does not fall within the scope of Article 157 TFEU (C-152/91 — Neath[70]).

Benefits paid under a ‘contracted-out’ private occupational scheme that partly replaced a general statutory scheme do constitute ‘pay’, even if paid after the termination of an employment relationship (C-262/88 — Barber[71]) as well as schemes supplementary to the statutory occupational pension scheme (C-110/91 — Moroni[72]).

Article 157 TFEU also applies to a survivor’s pension provided by an occupational pension scheme based on a collective bargaining agreement (C-109/91 — Ten Oever[73]) and to benefits granted under a pension scheme, including survivors’ benefits (C-147/95 — Evrenopoulos[74]). The CJEU later found that pensions provided under, e.g., a retirement scheme for civil servants are ‘pay’ since ‘civil servants must be regarded as constituting a particular category of workers’ (C-366/99 — Griesmar[75]).

3. Work of equal value

Victims of pay discrimination may face a major obstacle in bringing claims before national courts due to the problems of making comparisons. There is a lack of clarity in the assessment criteria for comparing different jobs.

The jurisprudence of the CJEU has clarified the scope of the Treaty provisions and the EU secondary laws laying down the principle of equal pay. There is no EU-level definition of work of equal value, however the CJEU case law has extensively interpreted the concept of “work of equal value”.

The Court has held on several occasions that determining equal value involves comparing the work of a female and a male worker by reference to the demands made on them in carrying out their tasks. The skill, effort and responsibility required, or the work undertaken and the nature of the tasks involved in the work to be performed[76] are all relevant. This case law was also reflected in the Recital 9 of the Directive 2006/54/EC.

The CJEU declared early on that ex-Article 119 TEEC pursued an economic and social aim, thus showing that the principle that men and women should receive equal pay ‘forms part of the foundations of the Community’ and thus is a provision with direct effect (case 43/75 — Defrenne II[77]). This Treaty provision may be invoked before national courts, in particular in cases of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which work is carried out in the same establishment or service, whether private or public (case 43/75 — Defrenne II[78], case 129/79 — McCarthys[79], case 96/80 — Jenkins[80]).

The CJEU specified that ex-Article 141(1) TEC lays down the principle that equal work or work of equal value must be remunerated in the same way, whether it is performed by a man or a woman’ (C-320/00 — Lawrence[81], C-17/05 — Cadman[82]). To be applicable, it presupposes that male and female workers are in comparable situations (C-320/00 — Lawrence[83]).

The principle of equal pay laid down in ex-Article 119 TEEC does not preclude the making of a lump-sum payment exclusively to female workers who take maternity leave where that payment is designed to counterbalance the occupational disadvantages which arise for those workers as a result of their being away from work (C-218/98 — Abdoulaye[84]) because their particular situation due to maternity cannot be compared with that of male workers.

The CJEU held that Member States were responsible for guaranteeing the right to receive equal pay for work of equal value even in the absence of a system of job classification. If there is disagreement as to the application of the concept of ‘work to which equal value is attributed’, the worker must be entitled to claim before an appropriate authority that his/her work has the same value as other work and, if that is found to be the case, to have his/her rights under the Treaty and the Directive acknowledged by a binding decision (case 61/81 — Commission v UK[85]).

If the worker presents evidence to show that the ‘criteria for establishing the existence of a difference in pay between a woman and a man and for identifying comparable work are satisfied, a prima facie case of discrimination would exist’ (C-427/11 — Kenny[86]).

In Barber and subsequent case law the CJEU considered of fundamental importance the concept of transparency in relation to pay under ex-Article 119 TEEC. The CJEU stated that ‘with regard to the means of verifying compliance with the principle of equal pay, […] if the national courts were under an obligation to make an assessment and a comparison of all the various types of consideration granted, according to the circumstances, to men and women, judicial review would be difficult and the effectiveness of [ex-] Article 119 TEEC would be diminished as a result. It follows that genuine transparency, permitting an effective review, is assured only if the principle of equal pay applies to each of the elements of remuneration granted to men or women.’ The application of the principle of equal pay must be ensured in respect of each element of remuneration and not only on the basis of a comprehensive assessment of the consideration paid to workers (C-262/88 — Barber[87], C-381/99 — Brunnhofer[88]).

Over the years, to decide if a difference in pay is ‘justified by objective factors unrelated to any discrimination linked to the difference in sex’ (C-427/11 — Kenny[89]) the CJEU has established the following criteria to determine whether different types of work are of equal value.

3.1. Nature of work

In a case concerning whether a classification scheme might be discriminatory on grounds of gender, the CJEU ruled that the nature of tasks involved in the work to be performed ‘should be capable of measurement by a scheme’. Therefore, in differentiating rates of pay, it was consistent with the principle of non-discrimination to use a criterion based on the objectively measurable expenditure of effort necessary in carrying out the work or the degree to which, reviewed objectively, the work was physically heavy (case 237/85 — Rummler[90]). This also applies to part-time work (case 96/80 — Jenkins[91]).

3.2. Scope of comparison of work of equal value

The CJEU has developed criteria of comparability with regard to the principle of equal pay for men and women.

The CJEU provided that the Treaty and the Directive apply to piece-work pay schemes in which pay depends entirely or in large measure on the individual output of each worker (C-400/93 — Royal Copenhagen[92]).

Moreover, for the purposes of the comparison to be made, with regard to the principle of equal pay for men and women, between the average pay of two groups of workers paid by the piece, the national court must satisfy itself that the two groups each encompass all the workers who, taking account of a set of factors such as the nature of the work, the training requirements and the working conditions, can be considered to be in a comparable situation and that they cover a relatively large number of workers ensuring that the differences are not due to purely fortuitous or short-term factors or to differences in the individual output of the workers concerned (C-381/99 — Brunnhofer[93], C-400/93 — Royal Copenhagen[94]).

In addition, the CJEU held that ‘the comparison must moreover cover a relatively large number of workers in order to ensure that the differences found are not due to purely fortuitous or short-term factors or to differences in the individual output of the workers concerned’[95].

The CJEU held that the principle of equal pay for work of equal value covers the situation in which a worker is engaged in work of higher value than that of the person with whom a comparison was to be made (case 157/86 — Murphy[96]).

The work which may serve as a comparison does not necessarily need to be the same as that carried out by the person who invokes the principle of equality to their benefit (C-236/98 — JämO[97], C-192/02 Nikoloudi[98]).

3.2.1. Location of employment

Early on, the CJEU found that both public and private sector employees can pursue equal pay claims. In Defrenne II followed by the subsequent judgments the CJEU ruled that ex-Article 119 TEEC applies in cases ‘in which men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public’.

These findings were confirmed when the CJEU stated that ‘in cases of actual discrimination falling within the scope of the direct application of [ex-] Article 119 TEEC, comparisons are confined to parallels which could be drawn on the basis of concrete appraisals of the work actually performed by employees of different sex within the same establishment or service’ (case 129/79 — McCarthys[99]).

However, it was later specified that there was ‘nothing in the wording of [ex-] Article 141(1) TEC to suggest that the applicability of that provision is limited to situations in which men and women work for the same employer’ (C-320/00 — Lawrence[100]).

In a case where ‘the differences identified in the pay conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no body which is responsible for the inequality and which could restore equal treatment. Such a situation does not come within the scope of [ex-] Article 141(1) TEC. The work and the pay of those workers cannot therefore be compared on the basis of that provision’ (C-256/01 — Allonby[101]).

The above case law of the CJEU has introduced a new element broader than the same establishment or the same service for the comparison of work of equal value, that of single source. When the differences identified in the pay conditions of workers of different sex performing equal work or work of equal value cannot be attributed to a single source, they do not come within the scope of Article 157 TFEU.

3.2.2. Contemporaneous employment

The principle that men and women should receive equal pay for equal work applies whether or not that work is contemporaneous and for the same employer. It also applies if it is established that a woman received less pay than a man who was employed for a period before her, doing equal work for the employer. The CJEU stressed, however, that it could ‘not be ruled out that a difference in pay between two workers occupying the same post but at different periods in time may be explained by the operation of factors which were unconnected with any discrimination on grounds of sex’ (Case 129/79 — McCarthys[102]).

3.2.3. Collective agreements

A number of cases before the CJEU have concerned the national collective agreements. In a segregated labour market men and women are often covered by separate agreements because of their different occupations, which precludes comparison between groups of workers, even in the same organisation, covered by different collective agreements.

The CJEU found that the fact that the pay rates were agreed by collective bargaining is not sufficient objective justification for the difference in pay (C-127/92 — Enderby[103]). The principle of equal pay for men and women also applies where the elements of the pay are determined by collective bargaining or by negotiation at local level (C-400/93 — Royal Copenhagen[104]).

3.2.4. Shift of the burden of proof

The CJEU held that where an undertaking applies a pay system which is totally lacking in transparency, the burden of proof is on the employer to show that his pay practice is not discriminatory where a female worker establishes, by comparison with a relatively large number of employees, that the average payment of female workers is lower than that of male workers (case 109/88 — Danfoss[105]). The CJEU noted that female employees ‘would be deprived of any effective means of enforcing the principle of equal pay before the national courts if the effect of adducing such evidence was not to impose upon the employer the burden of proving that his practice in the matter of wages is not in fact discriminatory’.

The concept of transparency pronounced in Danfoss is applicable to every element of the determination of a pay system, including any form of classification.

The CJEU held that where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which carried out almost exclusively by women, ex- Article 119 TEEC requires the employer to show that the difference is based on objectively justified factors unrelated to any discrimination on grounds of sex (C-127/92 — Enderby[106]) or where there is a much higher percentage of women than men this provisions, ‘requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex’ (C-236/98 — JämO[107]; C-17/05 — Cadman[108]; C-427/11 — Kenny[109]). The fact that the pay rates were agreed by collective bargaining is not sufficient objective justification for the difference in pay. In the case of indirect pay discrimination ‘it is for the employer to provide objective justification for the difference in pay between the workers who consider that they have been discriminated against and the comparators’ (C-427/11 – Kenny[110]).

In Royal Copenhagen, concerning proof of pay discrimination in piece-work pay schemes, the CJEU explained that the principle of equal pay between men and women means ‘that the mere finding that in a piece-work pay scheme the average pay of a group of workers consisting predominantly of women, carrying out one type of work is appreciably lower than the average pay of a group of workers consisting predominantly of men, carrying out another type of work to which equal value is attributed does not suffice to establish that there is discrimination with regard to pay. However, in a piece-work pay scheme in which individual pay consists of a variable element depending on each worker’s output and a fixed element differing according to the group of workers concerned, where it is not possible to identify the factors which determined the rates or units of measurement used to calculate the variable element in the pay, the employer may have to bear the burden of proving that the differences found are not due to sex discrimination’[111]. Therefore, it would appear that also in piece-work schemes, the burden of proof may be shifted to employer where it is necessary to avoid depriving workers of effective means of enforcing equal pay principle.

4. Job evaluation and classification

Job classification or job evaluation can be used to determine the hierarchy or hierarchies of jobs in an organisation or in a group of organisations as the basis for explaining the pay system. Since direct simple pay discrimination for the exact same work has become rare, the discrimination-related roots of the pay gap have to be located in the methods used to differentiate between male- and female-dominated jobs. Such discrimination is much less conspicuous and concealed in the technicalities of determining the value of work and pay through classification systems. Gender-neutral job classification systems support establishing ‘work of equal value’ and may detect indirect pay discrimination.

Job classification systems aim to measure the relative value not of job holders, but of jobs. In theory, the performance of the individual should not enter into the evaluation or classification of the job itself. However, if a job classification system is established in practice, it may be difficult to dissociate individuals from their jobs.

Job evaluation or job classification systems aim to provide an acceptable rationale for determining pay levels in existing hierarchies of jobs. Job classification systems are a management tool to achieve an acceptable rank order of jobs, implemented unilaterally or with varying degrees of participation on the part of the workforce. Acceptability, consensus and the maintenance of traditional hierarchical structures are essential parts of job evaluation or job classification systems.

Article 4, 2nd indent of the Directive 2006/54/EC provides that ‘in particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex’.

Member States are not obliged to introduce job classification systems. Nevertheless, if such systems are used by a private or a public employer as a basis for determining pay rates, they have to be gender neutral.

A number of judgments of the CJEU provide guidance on the role and nature of job evaluation and classification systems.

Early on, the CJEU noted that comparative studies of entire branches of industry are needed to detect indirect and disguised discrimination. Therefore, the CJEU ‘requires, as a prerequisite, the elaboration by the Community and national legislative bodies of criteria of assessment’ (case 129/79 — McCarthys[112]). This would appear to encompass evaluation and classification techniques as well as statistical analyses of pay and gender differences.

In Danfoss, the CJEU held that the employer had to justify recourse to the criteria of mobility and training, but not to the criterion of length of service. This merely confirms that before any system of classification can be considered as a justification for the different grading of jobs, the Court seized of a dispute, must itself, with relevant information, determine the nature and demands of jobs compared for the purposes of equal pay. Job classification and evaluation may be reasons justifying differences in pay but their neutrality and appropriateness for particular jobs must be assessed against a review by the courts of the nature of disputed jobs to comply with the Directive.

Under Directive 76/207/EEC (now Directive 2006/54/EC) a job classification system is only one of several tools for determining pay for work to which equal value is attributed (case 61/81 — Commission v UK[113]). The CJEU held that ‘where a job classification system is used in determining remuneration, that system must be based on criteria which do not differ according to whether the work is carried out by a man or by a woman and must not be organised, as a whole, in such a manner that it has the practical effect of discriminating generally against workers of one sex’.

On the other hand, the CJEU provided that a classification system can use the criterion of the muscular effort required for the work, as long as the system as a whole precludes any discrimination on grounds of sex by taking into account other criteria for which workers may show particular aptitude on account of being male or female (case 237/85 — Rummler[114]).

The CJEU laid down three guiding principles following from paragraph 2 of Article 1 of Directive 75/117/EEC (now Article 4, 2nd indent of Directive 2006/54/EC) on the question of job classification (case 237/85 — Rummler):

‘a) the criteria governing pay-rate classification must ensure that work which is objectively the same attracts the same rate of pay whether it is performed by a man or a woman;

b) the use of values reflecting the average performance of workers of the one sex as a basis for determining the extent to which work makes demands or requires effort or whether it is heavy constitutes a form of discrimination on grounds of sex contrary to the Directive;

c) in order for a job classification system not to be discriminatory as a whole it must, insofar as the nature of the tasks carried out in the undertaking permits, take into account criteria for which workers of each sex may show a particular aptitude.’[115]

These guiding principles demonstrate that in the context of a dispute, according to the case law of the CJEU, a job classification system must be formal, analytical, factor based and non-discriminatory.

In subsequent judgment, the CJEU provided the following clarifications of its case law on job classification and on work of equal value (C-381/99 — Brunnhofer[116]):

– the fact that a female employee who claims to be the victim of discrimination on grounds of sex and the male comparator are classified in the same job category under the collective agreement regulating their employment is not in itself sufficient for concluding that those employees perform the same work or work of equal value, since this fact is only one indication amongst others that this criterion is met;

– a difference in pay may be justified by circumstances not taken into consideration under the collective agreement applicable to the employees concerned, provided that they constitute objective reasons unrelated to any discrimination based on sex and are in conformity with the principle of proportionality;

– in the case of work paid at time rates, a difference in pay awarded, at the time of their appointment, to two employees of the different sexes for the same work or for work of equal value cannot be justified by factors which become known only after the employees concerned start work and which can be assessed only once the employment contract is being performed, such as a difference in the individual work capacity of the persons concerned or in the effectiveness of the work of a specific employee compared with that of the colleague.

Confirming its previous case-law in Danfoss, the CJEU ruled that since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better, the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in this regard (C-17/05 – Cadman[117]).

5. Conclusions

A considerable body of CJEU case law addresses various elements of the principle of equal pay. It provides valuable clarification about concepts of pay and work of equal value as well as guidance on discrimination in job evaluation and classification.

This case law could serve as guidance to all relevant stakeholders to facilitate the application of the principle of equal pay in practice. It could also be a source of inspiration for the authorities of Member States as well as national judiciaries to tackle the complex challenges related to equal pay.

Annex 3: Examples of landmark national Case-law on Equal Pay[118]

Bulgaria

Legal practice on ensuring equal pay is being developed by the Commission for Protection against Discrimination. The Commission is still the preferred forum for women who seek protection against unequal pay.

The Devnya Cement case was decided by the Second specialised panel of the Commission and was confirmed by the Supreme Administrative Court[119]. The Commission found continuous unequal treatment of the applicant, a female worker in ‘Devnya Cement’, in the practice of unequal pay for work of equal value, to her male colleagues. The Commission declared that it constituted both a violation of Article 14 paragraph 1 (the equal pay provision) of the Law on Protection against Discrimination (LPAD), and direct discrimination based on sex within the meaning of Article 4 paragraph 2 of the law. The defendant could not justify before the Commission the difference in pay of 45 BGN (around 23 EUR), practised monthly vis-à-vis the applicant and to her detriment, compared to her male colleagues. The Commission ordered ‘Devnya Cement’ to discontinue the practice of unequal treatment based on sex in the enterprise, and to amend the Collective agreement so as to include guarantees on equal pay, based on sex and on all other grounds, as required by Article 14 paragraph 1 and 2 of the anti-discrimination law.

Germany

Same pay for the same work

Federal Labour Court, judgment of 25 January 2012, 4 AZR 147/10: This case concerned the allegedly unfair remuneration of the two groups of employees (clinical chemists and medical doctors) in relation to a job classification system which separated both groups of employees working in a public hospital. The court decided that neither Article 157 TFEU nor Sections 1 or 7 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) provide for the general principle of ‘the same pay for the same work’. The court clarified that the principle of equal pay only applies in cases of sex discrimination. The ruling was confirmed by the Federal Administrative Court, judgment of 9 April 2013, 2 C 5/12.

Occupational pensions

Federal Constitutional Court, judgment of 18 June 2008, 2 BvL 6/07, and Federal Administrative Court, judgment of 12 December 2012, 2 B 90/11: The courts decided that statutory reductions of retirement pensions due to former part-time work violated the constitutional as well as Union law prohibiting sex and pay discrimination. Thus, the courts followed the ruling of the CJEU in joined cases C-4/02 Schönheit and C-5/02 Becker.[120]

Definition for ‘work of equal value’

Federal Labour Court, judgment of 23 August 1995, 5 AZR 942/93: The applicant, a female packer, called for equal remuneration to her male colleagues doing the night shifts. The court held that the working activities of the female applicant and her male colleagues were not comparable. For a definition of work of equal value, the court mentioned the requirements for work performance such as necessary previous knowledge, skills and abilities with respect to their manner, variety and quality. The application was rejected due to the variety of professional duties performed by the male colleagues. Nonetheless, the court itself deplored the lack of objective criteria for definitions of work of ‘equal value’.

Equal pay versus autonomy of collective bargaining

See Federal Labour Court, judgment of 20 August 2002, 9 AZR 353/01: The female applicant claimed her entitlement to vacation benefits as, due to collective agreement regulations, she lost them because of her maternity leave taken before birth. The court held that the respective regulation of the collective agreement was unconstitutional and could not be justified by the freedom of collective bargaining because of its pressure exerted on pregnant employees to abandon their right to maternity protection before birth.

Burden of proof

Federal Labour Court, judgment of 10 December 1997, 4 AZR 264/96: The applicant, a female social worker, alleged a violation of the prohibitions of gender and pay discrimination by higher wages and better working conditions for technical workers guaranteed by a collective agreement for the public services. The court held that the claim was unfounded as the applicant could not establish facts leading to the conclusion that the job classification criteria for the two groups of employees were arbitrary.

Ireland

Judgment of the High Court in Brides v Minister for Agriculture, Food and Forestry [1998] 4 IR 250: Female applicants employed in the Department of Agriculture sought to rely on a male comparator employed by Teagasc, a statutory body, for an equal pay claim. The High Court held that the scope of the direct applicability of the right to equal pay under Community law extended to cases where there was discrimination in respect of like work within the same establishment or service. The relevant comparator had to be real and have a tangible connection with the type of work performed by the claimant. The principle of equal pay was not one which extended to cases where the relevant comparator was not employed by the same or an associated employer. The claimant and comparator did not work for the same employer.

Judgment of the Supreme Court in National University of Ireland Cork v Ahern [2005] 2 IR 577: This case involved a claim brought by 42 male security service operatives employed by the appellant. The equality officer and Labour Court found that they were discriminated against, relying on two switchboard operators, employed on a job-sharing capacity, as comparators. The case ultimately came before the Supreme Court. The Supreme Court found that in considering whether there were grounds other than sex justifying the different rates of pay, the Labour Court had failed to properly consider the circumstances surrounding the different rates of pay. The Court ultimately accepted the appellant’s contention that the different rates of pay were not based on grounds of sex, but were justified by a policy of facilitating the family obligations of employees.

Judgment of the High Court in Minister for Transport, Energy and Communications v Campbell [1996] ELR 106: This case concerned the defence of ‘red circling’ brought by the appellant in an appeal before the Labour Court. The case involved a number of female ‘communications assistants’ who argued that they were entitled to the same rate of pay as two male ‘radio assistants’. The comparators had been assigned lighter duties on the grounds of ill health, but had retained the same rate of pay. The High Court held obiter that in arriving at a conclusion as to whether persons were being genuinely reassigned to protected pay posts on compassionate health grounds, the Labour Court was entitled to take account of all the facts surrounding the reassignment.

Judgment of the High Court in Flynn v. Primark [1997] ELR 218: The female appellants brought an equal pay claim relying on male store men as their comparators. The Labour Court found that while the appellants were performing like work, the difference in pay was on grounds other than sex, as the pay rates were arrived at by different industrial processes. The High Court held that the Labour Court should have considered whether the differences were justified on economic grounds and not merely a means of reducing the pay of workers of one sex; also the fact that the difference in rates of pay was achieved by different industrial routes does not objectively justify the practice. Further, findings of fact should be made explicitly, and not by implication.

Judgment of the High Court in Irish Crown Cork Co. v. Desmond [1993] ELR 180: This was a claim by 52 female employees for equal pay with a comparator on a higher pay grade. The Labour Court found that the comparator performed some duties which required greater skill than the women employees. When he performed these duties for an extended period, he was paid at the highest pay grade. The Labour Court discounted the periods during which the comparator was paid at grade 1 (the lowest grade) and found that during such periods, the comparator and female members of staff were performing like work. On appeal to the High Court, the Labour Court was found to be entitled to disregard the periods when the comparator was paid at the highest grade in assessing like work. The High Court found that the Labour Court had erred in not then considering whether the difference in pay was attributable to grounds other than gender.

Judgment of the High Court in C & D Food Ltd. v. Cunnion [1997] 1 IR 147: This case involved a claim by female workers for equal pay in respect of male workers in another pay grade. The High Court found that although an employer may genuinely believe that the value of work being carried by employees in one occupation is higher than the value of work carried out by others, he cannot justify a pay difference based solely on his belief. The fact that both men and women are recruited to the same job at the same wage is a matter to be taken into account in determining the relative value of the different tasks within the work place, and the employer’s belief, held in good faith, is not sufficient as a basis for conclusions. The legislation did not require all of the claimants’ work to be identical to that of the comparator.

Judgment of the High Court in Golding v. The Labour Court [1994] ELR 153: This case examined the reasons to be given by the Labour Court where a finding is made against claimants. The 12 applicants’ claim for equal pay in respect of a male comparator was rejected by the equality officer and the Labour Court. On application for judicial review of the decision, the High Court held that a determination by the Labour Court must give sufficient reasons for the court’s decision, so that the parties can see if there is a point of law on which to appeal to the High Court. There is no prescribed format for the determination.

Judgment of the High Court in King v. Minister for Finance [2010] IEHC 307: This case examined the weight to be attributed to statistical evidence in an equal pay claim. The High Court considered an appeal on a point of law from the Labour Court on the grounds that there was an erroneous calculation in determining the ratio of women to men. Appeals to the High Court are on a point of law only and this was held not to be a point of law. The High Court approved the Labour Court determination stating that there was an inherent vulnerability in statistics taken at a fixed time or period which would be influenced by purely fortuitous factors. The Labour Court, as a specialised tribunal, was entitled to reach the conclusion that there were indeed such factors to be taken into account. The High Court endorsed the view that ‘statistics are but an aspect for consideration and would not in any event be decisive in themselves’.

Determination of the Labour Court in Irish Ale Breweries Ltd. v. O’Sullivan [2007] ELR 150: This case examined the burden of proof in identifying a comparator. The claimant sought to rely on a comparator who was not known to her. The company failed or refused to supply her with information regarding the duties and remuneration of a possible comparator. The Labour Court found that while the onus of proving like work usually fell to the claimant, an overly rigid application of this principle could impair the protection that the Act offered. The Court found that it should proceed on the basis of a rebuttable inference that the claimant and the comparator were engaged in like work. As no evidence was put forward to rebut this, the Court found in favour of the claimant.

Greece

Judgment of the Supreme Civil and Penal Court, Civil Section (Full Court) (SCC) judgment No 3/1995: The question was whether family allowances paid by the employer constituted ‘pay’. A female employee claimed the family allowance paid by her employer under the internal rules of the business were a percentage of the basic salary. This was paid to all male employees who were married and had children without any further condition, but female employees were subjected to two conditions: that their husband be unable to maintain himself due to invalidity or illness, and that the children be maintained by the mother. The SCC relied on the equal pay constitutional norm (Article 22(1)(b)) in the light of, and in conjunction with, ILO Convention No 100 and ex-Article 119 TEEC (now Article 157 TFEU), as interpreted by ECJ case law, which required a levelling-up solution[121]. This held that the concept of ‘pay’ includes family allowances paid by the employer, since they are paid in respect of the employment relationship. The SCC therefore reversed its previous case law, which had not found any discrimination in this respect, as it had applied the breadwinner concept.

Spain

Judgment of the Constitutional Court of 1 July 1991 No 145/1991: The Court considered that certain professional classifications constituted indirect discrimination on grounds of sex because, although the collective agreement had valued the physical effort required in the category occupied mostly by men, it did not value other factors which were required in the category occupied mostly by women in the same way. This interpretation has been followed in other subsequent judgments of the Constitutional Court itself (for instance, Sentence 58/1994, 28 February 1994) and in other rulings of the ordinary courts.

Sentence of the Supreme Court of 18 July 2011, No 133/2010: One of the factors that has most influence on the difference in pay between men and women is discrimination in career development. The Supreme Court established that a system of promotion that lacked even minimal transparency led to women stagnating in lower ranks, according to statistical analysis, and that this constituted indirect discrimination.

France

Judgment of Cour de Cassation of 12 February 1997, No 95-41694: The Court was faced with an equal pay claim from a female mushroom packer comparing her work with more highly paid male packers. The Court stated that it was clear that women packers were systematically paid less than their male equivalents. For the Cour de cassation, men and women were doing the same work and the employer could not give any objective reasons for paying them differently.

Judgment of Cour de Cassation of 6 July 2010, No 09-40021: In this case, a woman employee held a position as ‘Human Resources, Legal and Office Department Manager’. Following her dismissal, the employee decided to file a claim for back pay on the grounds that there had been sexual discrimination against her. The employee provided evidence that her salary, despite equal classification, and more seniority than her direct male colleagues, was substantially lower than that of her male colleagues. For the French Supreme Court, the functions of the employee and those of her direct colleagues were identical as to hierarchical level, classification and responsibilities. Moreover, their importance was comparable with regard to the functioning of the company, as each of the managerial positions required comparable qualifications and involved a comparable level of stress. The French Supreme Court concluded that the employees performed work of equal value.

Judgment of Cour de Cassation of 3 July 2012, No 10-2301: Even if indirect discrimination is prohibited, there are very few cases in France on this issue. This case is the second in which the Cour de Cassation applied the concept of indirect discrimination. The decision is based on Article 157 TFEU as it concerns an occupational pension scheme in which the benefits for part-time workers were lower than for full-time workers. The Cour de Cassation found that a measure based on part-time work, which concerned mainly women and could not be justified, was discriminatory.

Italy

Tribunal of Venice of 2 May 2005 and Tribunal of Padova of 26 October 2007:[122] The two judgments concerned similar claims brought to court by the Provincial Equality Advisers representing a group of female public employees who did not get the incentive pay provided by sectoral collective agreements for compulsory maternity leave.

In both cases, the Tribunals stated these periods were to be calculated at the aim of bonus pay for the part which is not linked by collective agreements, to a specific project aimed at boosting productivity or to reward the heaviness of a specific job, but is to be shared on the mere criteria of the presence (which means including all working days, Saturdays, Sundays, holidays, compensatory rest, and excluding all other kinds of absence from work). According to the judges, this criteria must be applied consistently with the constitutional principle of equality, therefore compulsory maternity leave cannot be affected by this kind of remuneration as the absence from work is actually compulsory for the working mother. This differential treatment amounted to discrimination on the ground of sex in breach of Art. 37 of the Constitution which provides that ‘a working woman shall have the same rights and, for equal work, the same remuneration as a male worker (...)’. In the case of the Tribunal of Padova the local collective agreement was also in contrast with the principles stated by the national collective agreement, providing that the allowance shall also include possible incentive pay bargained at local level.

Pretura of Turin of 4 December 1991 and Pretura of Parma of 24 November 1981:[123] These judgments held that a collective agreement bargained at enterprise level which entitled only working women to a contribution for crèche expenses infringed the principle of equal treatment between male and female workers. Following their reasoning, the contribution is linked to the array of duties which burden both parents. A different interpretation would be in contrast with the constitutional principle of equality as it would imply the working mother is the main and/or only subject who is charged with family duties. This reversed the traditional guideline which, until the 1980s, allowed such clauses considering women’s essential family function protected by Art. 37 of the Constitution (Court of Cassation of 5 March 1986 No 1444).

Cyprus

Judgment of the Supreme Court in Case no. 5/62 Jenny Xinari V The Republic of Cyprus 3 R.S.C.C. 98: Up to 1955, a husband and his wife, both working in the public service, were both entitled to a cost of living allowance. In 1955, the relevant regulation changed, with the result that the allowance was restricted to the officer drawing the higher of the two salaries. The Applicant was appointed to the public service in 1956 and until 1961, when she married a public officer, she received the allowance. After her marriage, the allowance was given to her husband, because he was paid a higher salary. The Applicant alleged that the decision to deprive her of the allowance was null and void on the basis of Article 28 of the Constitution. The Court held that the notion of ‘equal pay for equal work’ was an integral part of the principle of equality safeguarded by Article 28 and declared the new regulation as unconstitutional and awarded the applicant back pay in compensation.

Judgment of the Supreme Court in Case no 541/86 page 3005 Melpo Gregoriou V Municipality of Nicosia 12 September 1991: The Applicant was an employee of Nicosia Municipality and in her application to the Supreme Court, she alleged that the decision of the Municipality not to approve her claim to be put on the same salary scale as her male colleagues who had the same job was null and void. The Supreme Court found in her favour and based its decision on Article 28 of the Constitution. It declared the Municipality’s decision null and void. The Supreme Court recognised that the constitutional principle of equality guarantees substantive equality.

Hungary

Judgment of Supreme Court Kfv.IV.37.332/2007/5: A female employee in a manual job earned less than her male co-workers in the same position. The employer defended the wage-difference with reference to different job tasks and also to the fact that the employee had been granted a housing loan that, according to the employer, was paid as partial compensation for the wage difference. The employer referred to the interpretation of ‘pay’ by the CJEU, claiming that all benefits have to be considered ‘pay’ in this context. A detailed analysis of the scope of the job (its nature, quality and quantity, the required skill, effort, experience and responsibility) revealed that the work of the female employee was comparable with that of her male co-workers, in spite of some differences in the tasks. Furthermore, the Supreme Court established that the housing loan could not be taken into consideration when comparing hourly wages, because it was not proved that it was granted as compensation for lower wages. The case law of CJEU brings into the concept of pay solely benefits that provide effective material advantage (it referred to cases C-12/81 Garland, C-262/88 Barber), whereas a housing loan was not such a gain, as it had to be paid back.

Austria

Collective agreements[124]

Decree of the Supreme Court 14 September 1994, 9 Ob A 801/94: Following the application of the Austrian Confederation of Trade Unions on behalf of the Trade Union Metal, Mining and Energy against the Syndicate of Power Utilities, the Court made a declaration concerning job classification criteria. In the case at hand, all workers to whom the collective agreement for power supply undertakings (Elektrizitätsversorgungsunternehmungen) of 13 July 1990 applied, and who were classified in group V of this collective agreement were to be upgraded to group IV as from 13 July 1990 or a respective later commencement of their employment. Furthermore, the upgraded workers were entitled to the correspondingly higher wages from 2 February 1991. The criteria of group IV referred to ‘supporting staff for heavy work’, requiring physical performance though not special training, while group V was defined as ‘supporting staff for easy tasks’ and consisted of 100 % women. These were considered discriminatory job classification criteria analogous to the Rummler case[125] (Leichtlohngruppe); even if the then pertinent legislation did not explicitly refer to indirect discrimination the principle of indirect discrimination was clearly implied and thus had to be implemented.[126]

Decree of Constitutional Court 11 December 1998, G 57/98, Pharmazeutische Gehaltskasse: The applicant was a part-time employed pharmacist (as opposed to self-employed pharmacists) to whom a specific statutory pension scheme with the nature of a collective agreement applied. The Court, applying Article 119 TEEC directly and referring inter alia to the CJEU judgment in Hill/Stapleton,[127] found that taking into account periods of full-time and part-time employment differently for advancement (and therefore pay including contributions to a pension scheme) constituted indirect discrimination.

Decree of Supreme Court 1 December 2004, 9 Ob A 90/04g: The provision of a collective agreement, granting a hardship allowance for screen handling (visual display unit work) only to employees working normal working hours (i.e. full-time), amounts to indirect discrimination against women when the enterprise concerned employs more women than men in part-time.[128]

Decree of Supreme Court 29 March 2012, 9 ObA 58/11 m: The collective agreement of Austrian Airlines and Lauda Air (cabin crew) which does not include periods of parental leave into the seniority regime does not constitute (indirect) pay discrimination within the meaning of Article 141(1) TEC (Defrenne III[129]); compare also Tyrolean Airways Tiroler Luftfahrt GmbH.[130]

Public service (statutory pay schemes)

Decree of Supreme Court 9 May 2007, 9 ObA 41/06d: When taking previous periods of occupation into account for determining pay and other entitlements of public employees, imposing certain time limits and the less favourable assessment of part-time work are discriminatory. The Supreme Court, amending the decision of the second instance court, adjudicated the accordingly higher pay to the complainant, a female teacher.

Decree of Supreme Court 29 June 2005, 9 ObA 6/05 f: The Court held that the complainant, a hospital nurse and contractual employee of the Land Upper Austria, was not discriminated against by a statute which did not include periods of non-permanent part-time work into the assessment basis for severance pay.[131]

Other cases (private sector)

Decree of Supreme Court 17 March 2005, 8 ObA 139/04 f, after the preliminary ruling of the CJEU in Hlozek:[132] Transitional payments (Überbrückungsgeld) on the basis of a severance scheme agreed upon by the collective parties in the enterprise following a merger and subsequent dismissals, are to be considered pay albeit not an occupational pension within the meaning of the relevant legislation. A male employee was not discriminated against on grounds of sex by different (lower) payments because of the different legal age of retirement and the higher risk of unemployment for women.

Poland

The Supreme Court judgment of 22 February 2007, I PK 242/06, Maria S. vs. The Municipal Office in J: The plaintiff, a female legal adviser employed in the municipal office, claimed that her employer discriminated against her on the grounds of sex. She received lower remuneration than a male legal advisor working in the same team, despite the fact that they performed the same work. The employer argued that the plaintiff's salary remained within remuneration brackets, set forth by provisions of law. He also indicated that her salary was lower than her colleague’s because the plaintiff had less service experience, a lower standard of education (she didn’t attend any specialisation courses besides her legal apprenticeship) and handled less cases. In two instances the courts found that those reasons were sufficient for justifying the difference in remuneration. They therefore found no sex discrimination in this case.

The plaintiff disagreed with those judgments and filed a cassation claim to the Supreme Court. The Supreme Court found unequal treatment of employees in the workplace, however based on a different reason than sex. In the court’s opinion the differences in remuneration resulted from the fact that the plaintiff was hired earlier than her male colleague. The court decided that it was not the case of discrimination based on sex because other female legal advisers, who joined the team later than plaintiff, had pay equal with their male colleague. Nevertheless, the court argued that her employer should still prove that the wage difference between the plaintiff and her male colleague was motivated by objective reasons if he didn’t want the differentiation to be qualified as discrimination. The Supreme Court also explained, referring to the case law of the CJEU, that if the employer took into account criteria such as the length of service and qualifications, while establishing the remuneration, s/he must prove that the particular skills and professional experience have special significance for the fulfilment of concrete the obligations conferred upon the employee.

The Supreme Court judgment of 25 May 2011, II PK 304/10, Bartłomiej S. vs. K-T Limited: The Plaintiff was employed as a sales specialist at the defendant company K-T Limited. The plaintiff received information concerning the pay of his co-workers by mistake, yet alarmed by high differences in the wages he decided to distribute this information among his colleagues, in order to clarify the differences. The direct supervisor could not explain the discrepancies of remuneration between the individual employees. The defendant company had however an unwritten rule forbidding the disclosure of employees’ remuneration details, of which the plaintiff was aware. The plaintiff contract of employment was terminated without notice.

In this case the Supreme Court found that disclosing information covered by the so-called ‘salaries confidentiality clause’ in order to prevent unfair treatment and wage-related forms of discrimination, could not in any way serve as ground for termination of the employment contract with the plaintiff. With reference to Article 18.1e of the Labour Code, the Court emphasised that ‘the exercise by an employee of the rights resulting from violations of the principle of equal treatment in employment, including the attempt to investigate or to provide any form of support to other employees, aimed at preventing the potential application of wage discrimination by the employer, can’t constitute a reason for termination by the employer of the contract of employment, nor a dissolution without notice, regardless of the way the employee accessed the information, that may indicate a violation of the principle of equal treatment in employment or application of wage discrimination’.

The Supreme Court judgment of 8 January 2008, II PK 116/07, the case of Grażyna P: In this case the plaintiff (a mother of five children) claimed damages for discrimination based on sex, age and family status. In her opinion, one of the signs of discrimination included the significant differences in remuneration between her and her colleagues. The employer argued that unfavourable remuneration of the plaintiff was partly the result of her frequent use of parental leave. The courts of first and second instance found that by differentiating the situation of the claimant in terms of pay, the defendant applied legally acceptable criteria. These judgments were overruled by the Supreme Court, recognising a cassation claim, arguing that ‘the exercise of powers conferred by law in connection with the birth and upbringing of the child can’t be regarded as an objective reason for determining a lower remuneration compared to other employees’.

The Constitutional Tribunal judgment from 9 July 2012, P 59/11, initiated by a legal question of the District Court in Białystok: In a case heard by the District Court in Białystok an employee claimed her right to an additional annual salary (so called thirteenth salary), guaranteed to employees of the public sector according to the Act of 12 December 1997 on additional annual salary for employees of the public sector.[133] It was denied to her by the employer who stated that she didn’t meet the required period of continuous work during a calendar year (which was for six months), due to the use of maternity leave.

The court decided to refer the case to the Constitutional Court with a legal question, whether Article 2 Paragraph 3 of the Act of 12 December 1997 dealing with an exception from the requirement to work for the employer for at least six months in a given calendar year in so far as it ignored the period of maternity leave as such exception, is in conformity with the Constitution. The Tribunal in its ruling first confirmed that the additional annual salary in the public sector remains within the wider concept of remuneration, due to the fact that it is closely related to the employment relationship, and has no discretionary character with regard to the employer. The Tribunal further held that Article 2 paragraph 3 of the Act of 12 December 1997 was incompatible with Article 32.1 prohibiting discrimination, in connection with Article 71.2 of the Polish Constitution, granting the mother the right to special assistance from public authorities before and after birth. This was insofar as to which Article 2 Paragraph 3 ignored the period of maternity leave as allowing for the acquisition of the right to additional annual salary in the amount proportional to the length of time worked in the situation when, throughout the calendar year, the employee didn't perform work for six months.

Finland

Judgment of the Labour Court TT 1998-34: The Labour court was asked to rule on whether a clause in a collective agreement was discriminatory. The clause stated that maternity and parental leave periods were not to be taken into account as time that entitled a person to additional pay on the basis of work experience. The court held that the clause was discriminatory and as such null and void. The court referred to cases Nimz and Gillespie, and used the Bilka test in assessing whether there was indirect discrimination.

Judgment of the Labour Court TT: 2002-7-10: The Labour Court held that the burden of proof may be shifted onto the defendant if the plaintiff can present at least one comparator of the opposite sex who has higher pay for equal work, irrespective of whether there are both women and men in lower and higher pay brackets doing equal work.

Sweden

Judgment of the Labour Court Case 1996 No 41: This case concerned Örebro County and the health sector or, to be more exact, whether there was discrimination in paying a midwife less than a hospital technician. The Labour Court did not exclude the possibility that the work of a midwife and a hospital technician could be compared and found to be of equal value, but in the case at stake, it did not find the method used by the Equality Ombudsman to be sufficient to prove this. No discrimination was found.

Judgment of the Labour Court Case 2001 No 13: This case also concerned Örebro County and the health sector. It, too, concerned alleged pay discrimination, with a midwife being paid more/less than a hospital technician. In this case, the midwife and the technician were found to perform work of equal value following an assessment in terms of knowledge and skills, responsibility, effort and working conditions (now part of the definition of work of equal value according to the 2008 Discrimination Act). There was thus apparently a prima facie case of pay discrimination.

The Labour Court, however, accepted the employer’s ‘excuse’ that the technician’s higher wages were due to the market. The technicians had alternative job options at significantly higher wages, an acceptable reason to pay hospital technicians somewhat more. There was thus no discrimination. Compare also the ’parallel’ Labour Court Case 2001 No 76 (a nurse and a hospital technician were compared and their work was found to be of equal value). The court found that there was no pay discrimination in this case either.

United Kingdom

Hayward v Cammell Laird Shipbuilders Ltd [1988] IRLR 247: the House of Lords ruled that the principle of equal pay required equality in relation to each element of pay rather than (as the employers here argued), the overall package paid to men and women respectively.

Ratcliffe & Ors v North Yorkshire CC [1995] IRLR 439: the House of Lords ruled that the employers could not justify pay differentials between workers in predominantly female and those in predominantly male jobs to the extent that such differences resulted from the application of stereotypical assumptions about the role of women in the workplace.

British Coal Corporation v Smith & Ors [1996] IRLR 404: the House of Lords ruled that for the purposes of an equal pay claim, the claimants could compare themselves with men who worked at a different establishment. This was because the same (national) collective agreement applied to all who worked for the establishment, whatever the location, albeit with minor local variations as a result of localised bargaining.

Glasgow City Council v Marshall & Ors [2000] IRLR 272: the House of Lords ruled that employers were not under any obligation to justify differences in pay between men and women doing work of equal value if the claimants could not prove that the employer’s grounds for paying women less discriminated indirectly on grounds of sex. However, if the discrimination had been direct, the employer would not have been able to uphold it as justifiable.

Robertson & Ors v DEFRA [2005] IRLR 363: the Court of Appeal ruled that civil servants working in the Department for Environment Food and Rural Affairs (DEFRA) were not entitled to compare themselves with those working for the Department of the Environment Transport and the Regions for the purposes of an equal pay claim under ex-Article 119 TEEC. Both were employed by the Crown, but terms and conditions of employment had been negotiated at departmental level. The Court of Appeal ruled that the pay of claimants and their comparators could not be attributed to a single source even though they had the same employer.

Powerhouse Retail Ltd & Ors v Burroughs & Ors [2006] IRLR 381 (following the decision of the ECJ in Preston v Wolverhampton Healthcare NHS Trust (case C-78/98)), for the purposes of an equal pay claim relating to occupational pensions, time began to run on the date of the transfer of the undertaking in which the claimants worked, rather than the date on which a claimant’s employment ceased. This case concerned claims which had been brought against the eventual employer by claimants whose contracts of employment had been subject to transfers covered by the Acquired Rights Directive.[134]

Fearnon & Ors v Smurfit Corrugated Cases (Lurgan) ltd [2009] IRLR 132: Northern Ireland’s Court of Appeal ruled that an industrial tribunal had erred in law in rejecting an equal pay claim because the comparator’s wages had been set higher in 1988, when his then employer had been taken over. From that date, the comparator’s annual pay rise had been the same as that of other staff in percentage terms, maintaining a differential. The Court ruled that the industrial tribunal was not entitled to accept that the reasons for the initial red-circling resulting in a differential were justified indefinitely, though there had been proper reasons for a differential in 1988.

Council of the City of Sunderland v Brennan & Ors [2012] IRLR 507: the Court of Appeal, considering the decision of the House of Lords in Marshall , pointed out that it would be difficult for an employer to demonstrate that pay practice which had a significantly disparate impact on men and women did not involve indirect sex discrimination.

Abdullah & Ors v Birmingham City Council [2013] IRLR 38: the Supreme Court held that employees who wished to claim equal pay were not required to do so in the employment tribunal (and therefore subject to strict time constraints) but could chose instead to do so by way of a claim for breach of contract in the civil courts, where there is a six-year time limit.

North and others v Dumfries and Galloway Council [2013] UKSC 45: the Supreme Court reaffirmed the original decision of the Employment Tribunal and held that although the men in this case did not work in the same workplace, under equal pay law they could nevertheless be used as comparators. The Supreme Court held that working in different locations for the same employer is not a barrier to achieving equality. The facts were that 251 women were working as classroom assistants and the comparable men were in manual work, in particular as grounds men, refuse collectors and as a leisure assistant. The men were entitled to bonus payments, whereas the women were not. The Supreme Court commented that the implementing legislation in the UK was sufficiently wide to enable this interpretation to be made and if it were not, the Court would be obliged to disregard domestic legislation and to base its conclusions on EU law.

North & Ors v Dumfries and Galloway Council [2013] IRLR 737: the Supreme Court considered the proper scope of comparators in equal pay claims, most such claims requiring an actual comparator. The Equality Act provides that a claimant may use as her comparator an employee (of the opposite sex) who is employed by the employer or an associated employer at the same establishment or at an establishment at which “common terms and conditions of employment are observed either generally or for employees of the relevant classes”. In North the Supreme Court ruled that, where claimants seek to rely on comparators employed at a different establishment, the legislation does not require there to be a “real possibility” of the comparators doing the same, or broadly similar, jobs at the claimants’ place of work.

The claimants were employed by the local authority at schools as classroom assistants, learning assistants and nursery nurses while their comparators were employed by the authority elsewhere as road workers, grounds men, refuse collectors, refuse lorry drivers and a leisure attendant. The men’s terms and conditions were set by the Green Book, the collective agreement for manual workers, while the women’s were set by a collective agreement known as the Blue Book. The tribunal was satisfied that, had the men been employed in the women’s establishments, their terms and conditions would have been controlled by the Green Book, and that they were suitable comparators (subject to the establishment of equal value with the claimants’ jobs) regardless of the fact that there was no “real possibility” that the men could be employed at the claimants’ establishment to do the same or broadly similar jobs to the ones they did at their current place of work. The Supreme Court further held that, had they taken the view that domestic legislation required such a possibility, the relevant provision would have to have been disapplied to achieve conformity with EU law (in particular, the decision in Lawrence v Regent Office Care Ltd [2003] ICR 1092).

Annex 4. The wider context: Tackling the Gender Pay Gap and National Good Practices

1. Causes of the gender pay gap – a lifecycle approach

Women face multiple inequalities in the labour market. The equal pay principle covers part of the wider context of the gender pay gap, which is related to:

– Violation of the equal pay principle in practice: if women and men are not paid the same, even though they do the same work or work of equal value, this may be because of direct or indirect discrimination, violating the principle of equal pay.

– Undervaluation of women’s work and skills and horizontal segregation: tradition and stereotypes often influence the different choices that women and men make in choosing what they study and their careers. This leads to a gender-segregated labour market where women’s skills and competences and female-dominated occupations are undervalued and underpaid compared to male-dominated oc