ICOIVMISSION OF THE EUROPEAN COMMUNITIES 
COM(94) 6 final 
Brussels, 23.06.1994 
MEMORANDUM 
ON EQUAL PAY 
FOR WORK 
OF EQUAL VALUE 
INTRODUCTION 
The Third medium term Community action Programme for Equal Opportunities 
between women and men (1991-1995) (1) which was the subject of the 
Council Resolution of 21 May 1991 (2) provides that the Commission shall 
"adopt a Memorandum to define the scope and concept of equal pay for 
work of equal value and provide guidance on the criteria to be taken 
into account in job evaluation and job classification". 
The adoption of a Memorandum was recommended as one of the main 
conclusions arising out of the Forum on Equal Pay Legislation in the 
Member States organised by the Women's Rights Committee of the European 
Parliament in March 1992. 
The necessity and utility of such a document was emphasised during the 
Equal Pay Seminar organised by the Belgian Presidency which took place on 
25 and 26 October 1993. 
This Memorandum is offered for information and consideration to 
interested parties concerned with or involved in the equal pay issue, 
such as appropriate government departments, national agencies having the 
reponsibility to . address disputes, social partners, lawyers and 
consultants. It does not contain formal proposals as such. 
CONTENTS 
Part I: BACKGROUND 
Part II : SUMMARY OVERVIEW OF THE JURISPRUDENCE OF THE EUROPEAN COURT 
OF JUSTICE 
Chapter 1: The meaning of work of equal value 
a) the nature of work of equal value 
b) the scope of comparison of work of equal value 
Chapter 2: Job classification, Job Evaluation and Discrimination 
a) job classification and job evaluation 
b) job evaluation and classification and European Law 
c) the implementation of pay structures 
Chapter 3: Pay for the purposes of article 119 of the EC Treaty 
a) basic and additional pay 
b) contractual and non contractual pay 
c) benefits 
d) deferred benefits 
e) social security benefits and pay 
f) pay and other working conditions 
g) total pay package v identifiable terms 
Part III: THE NEED FOR FURTHER MEASURES TO PROMOTE THE PRACTICAL 
ACHIEVEMENT OF EQUAL PAY FOR WORK OF EQUAL VALUE. 
PART I : BACKGROUND 
The principle of equal pay for men and women has been enshrined in 
Community law from its origins. Article 119 of the EC Treaty requires 
Member States to "ensure and subsequently maintain the application of the 
principle that men and women should receive equal pay for equal work". 
Article 119 of the EC Treaty was amplified by the Equal Pay Directive 
75/117/EEC, which introduced the concept of equal pay for work of equal 
value. 
However, despite the existence of this Community legislation, which all 
Member States have transposed into their national legislation, the 
attainment of equal pay for women is not yet a reality. The overall pay 
gap between women and men in the Community is still wide and, in some 
cases, still widening due to economic difficulties which have tended to 
affect women more severely than men. 
Although there is an absence of adequate data for accurate wage 
comparisons between men and women throughout the Community, recent 
figures indicate that women tend to work in significantly lower paid 
jobs than men . The differential in pay between men and women throughout 
the Member States of the European Community in 1990 is indicated in the 
following Table on the average value placed on women's work (3) : 
Manual (hourly) Non-manual (monthly) 
% of male rate % of male rate 
Belgium 75.9 64.6 
Denmark - 84.5 
France 80.8 66.6 
Germany 73.2 66.8 
Greece 76.3 69.8 
Ireland 68.1 
Italy 82.7 69.2 
Luxembourg 65.1 54.9 
Netherlands 75.3 65.5 
Portugal 71.6 70.7 
Spain 71.9 62.3 
UK 68.2 54.2 
The increasing participation of women in the labour market (in 1991, 
women represented 40% of the total working population in Community 
countries) has not been accompanied by any major diversification as 
regards the jobs they do and the sectors in which they work. Throughout 
the Community, both horizontal and vertical segregation remains a 
dominant feature of the structure of female employment. 
The effect of segregation amplified by the undervaluing of female 
occupations is a major reason for the persistance of significant' 
disparities in wage levels. 
Because of occupational segregation, job evaluation or classification 
schemes rarely compare men and women's work from a common standard. When 
a typical woman's job is compared with a typical man's job in a 
classification system, the factors considered and evaluated to calculate 
the remuneration nearly always result in a higher wage for a typical 
man's job than for a typical woman's job. Such a result is generally 
obtained under a pre-established value system where more points are given 
to i.e. physical strength, responsability vis-à-vis capital investment 
more than vis-à-vis human beings, training rather than to skills 
necessary to perform the job, dexterity etc . 
Obviously, reclassification of undervalued female work will not address 
discrimination in all its guises, since the classification of jobs does 
not ultimately determine pay rates. 
The discrepancies between women and men's pay among Member States arise 
as well from the variations in employment structures and reward systems. 
Differentials are affected by a number of factors including the extent 
and nature of atypical work as a proportion of "full-time" employment, 
governmental wage policies, and arrangements for collective bargaining. 
Indeed, collective agreements often perpetuate women's difficulties in 
getting access to additional payments and benefits through negotiations, 
particularly at local levels. Additional allowances for unfavourable 
working conditions and attendance, for example, remain almost exclusively 
the preserve of male occupations. 
In the light of the framework outlined above, horizontal and vertical 
segregation on the labour market are intrinsically linked to 
discrimination in pay. In order to break what appears to be a self-
perpetuating cycle of discrimination on the labour market, it would 
appear necessary to develop a strategy to combat both pay discrimination 
and segregation which are the major obstacles to more flexibility on the 
labour market. In today's context, the reasons for pursuing such an issue 
are not only based on equity but on the necessity of ensuring that proper 
recognition is given to everyone's skills and contribution to a changing 
economy. In concrete terms, the concept of equal pay for work of equal 
value means that where a woman undertakes work as demanding as a man's, 
even though the work is different, she should receive the same pay and 
benefits unless there is a non-discriminatory explanation for the 
differential. 
The Community's legal provisions on equal pay for work of equal value and 
the jurisprudence pertaining thereto address questions of a quite 
complex nature. 
There is a clear need for clarification or refinement of the principle of 
equal pay for work of equal value, so that individuals may rely on it and 
national courts and tribunals may apply it satisfactorily. This 
Memorandum is offered as a contribution to that clarification/refinemment 
process. The core of the document is in Part II, which follows. It 
comprises an overview of the jurisprudence of the European Court of 
Justice and covers the meaning of work of equal value, job 
classification, job evaluation and discrimination and definition of pay. 
Part III briefly addresses the need for further measures to promote the 
practical achievement of equal pay for work of equal value and mentions 
possible elements of a broad strategy towards that end. 
8 
PART II : SUMMARY OVERVIEW OF THE JURISPRUDENCE OF THE EUROPEAN COURT 
OF JUSTICE 
Chapter 1 ; The Meaning of Work of Equal Value 
a) The Nature of Work of Equal Value 
The principle of equal pay for work of equal value is intended to 
redress the undervaluing of jobs undertaken primarily by women, in 
particular, where they are found to be as demanding as different jobs 
more usually undertaken by men (4) . The concept contemplates the 
comparison of radically different jobs. Despite the articulation of 
the principle at Community level in the equal pay directive in 1975 
it remains the case that there has been no litigation in this area 
in a number of Member States (France, Luxembourg, Greece, Italy). 
In other Member States, there has been little litigation in which 
different jobs have actually been compared. The facts of the 
published cases reveal that the claims often involve the comparison 
of jobs having different job titles but that the duties are almost 
identical, save for minor or insignificant differences in tasks. 
The legislation of a number of Member States fails to assist in the 
recognition of the scope of the principle since the laws contain 
either no definition or no clarification of it (Luxembourg, Italy, 
Belgium, Spain, Greece, Portugal). In addition, the failure to 
include the concept of indirect discrimination in the prohibition 
against dicrimination in legislation (Greece), contributes to a 
limited perception of the equal pay principle. 
The use by some courts in equal pay claims of tests such as 
"manifestly discriminatory" implies a restriction of the equal pay 
principle to work which is identical or at least similar. 
Such a test was used by courts in Italy, though it remains to be 
seen whether this will continue to be the case, given the 
introduction of the concept of indirect discrimination in legislation 
passed in April 1991. 
By contrast, legislation in France, Germany, Ireland, the 
Netherlands and the United Kingdom contains either definitions of 
equal value or guidance on how to approach such claims. All of the 
definitions assess the determination of work of equal value by 
reference to the nature and demands of actual work. The approach set 
out in the provisions of these Member States defines the principle 
of equal pay for work of equal value as contemplated at a European 
level. The European Court of Justice* has held on several occasions 
that the determination of equal value involves a comparison of the 
work of the female and her male comparator by reference to the 
demands of the work undertaken and the nature of the tasks. 
In the infringement proceedings against the United Kingdom (5), the 
Court considered that the concept of 'equal value' was not too 
"abstract" to be applied by the Court but held that: 
"the implementation of the Directive implies that the assessment of 
the "equal value" to be "attributed" to particular work may be 
effected notwithstanding the employer's wishes, if necessary in the 
context of adversary proceedings. The Member States must endow an 
authority with the requisite jurisdiction to decide whether work 
has the same value as other work, after obtaining such information 
as may be required". 
* Hereinafter refered to as "the Court" 
10 
Addressing a claim concerning the "same work", the Court held in 
McCarthy Ltd v Wendy Smith (6): 
"in cases of actual discrimination falling within the scope of the 
direct application of Article 119 of the EC Treaty, comparisons are 
confined to parallels which may be drawn on the basis of concrete 
appraisals of the work actually performed by employees of different 
sex within the same establishment or service". 
In Gisela Rummler v Dato Druck GmbH (7), the Court, in considering 
whether a classification scheme might be discriminatory on grounds 
of gender, ruled that the "nature of the tasks involved in the work 
to be performed" should be capable of measurement by a scheme. 
Considering the finding of an Equality Officer in Murphy and others 
v Bord Telecom Eireann (8), a reference from the High Court in 
Ireland, the Court held that where the work had been assessed as more 
onerous and therefore of higher value, Article 119 of the EC Treaty 
prohibited the payment of iower wages. The jobs compared by the 
Equality Officer in the Murphy case were different and the mechanism 
for comparing the jobs was by assessment of the nature of the tasks 
and the demands made upon the workers in carrying out these tasks 
such as skill, effort, responsibility etc. 
Since it is the nature of the work which is important in assessing 
whether equal work is undertaken by the woman and the man, other 
factors will not be relevant to that assessment. The European Court 
of Justice found, in effect, in Jenkins v Kingsgate (Clothing 
Productions) LTD (9), that the fact that Ms Jenkins worked part-time 
did not change the nature of the demands of the job. 
Thus, for the period of time the work was undertaken she was entitled 
to be paid at the same rate as her full-time male comparator unless 
the difference in pay was attributable to factors which were 
objectively justified and were in no way related to any 
discrimination based on sex. 
11 
In Nimz v Freie und Hansestadt Hamburg (10), addressing the question 
of whether seniority could justify a pay differential, the Court held 
that : 
"Article 119 of the EEC Treaty must be interpreted as precluding a 
collective agreement, entered into within the national public 
service, from providing for the period of service of employees 
working at least three-quarters of normal working time to be fully 
taken into account for reclassification in a higher salary grade, 
where only one-half of such period of service is taken into account 
in the case of employees whose working hours are between one-half 
and three-quarters of those normal working hours and the latter 
group of employees comprises a considerably smaller percentage of 
men than women, unless the employer can prove that such a 
provision is justified by factors whose objectivity depends in 
particular on the relationship between the nature of the duties 
performed and the experience afforded by the performance of those 
duties after a certain number of working hours have been 
completed." 
Member States have different mechanisms for resolving individual 
claims concerning equal pay for work of equal value. Each of the 
mechanisms applied includes the consideration of the nature and 
demands of the different jobs compared to determine whether they 
are of equal value: 
1) In Belgium, France, Italy and Luxembourg many problems are 
resolved by "work inspectorates". Courts required to resolve a 
question are "not necessarily bound by the results of job 
evaluation schemes". 
2) In the Netherlands, the question of whether work is of equal 
value is assessed on the basis of "a reliable system of job 
evaluation". 
3) Under Irish legislation, any dispute on the subject of equal pay 
can be referred to one of three Equality Officers. 
12 
b) The Scope of Comparison» of Work of Equal Value 
i. Men and women 
One of the fundamental aims of Article 119 of the EC Treaty and of 
the Equal Pay Directive is "the elimination of all discrimination 
on grounds of sex". This presupposes comparisons between persons of 
the opposite sex. Comparisons cannot be made between persons of the 
same sex. However, Article 119 of the EC Treaty and the Directive 
do not preclude claims from men though the determining factor in 
equal pay claims is whether any differential is sex-based. 
European law is silent on who is entitled to choose the comparator 
for the purposes of an equal pay claim. However, it appears that in 
all Member States, it is the applicant who chooses the comparator. 
In a case before the Court of Appeal in the Netherlands, this 
approach did not exclude the court from introducing a further 
comparator in circumstances where it considered that the applicant 
had inadvertently omitted a more appropriate comparator and could 
not be expected to have had the necessary expertise to identify 
that particular person. 
ii. Comparisons can be made by public and private sector workers 
Both public and private sector employees can pursue claims in 
respect of equal pay. 
In Defrenne v Sabena II (11) the Court held that : 
"Courts have a duty to ensure the protection of the rights which 
this provision vests in individuals, in particular, as regards 
those types of discrimination arising directly from legislative 
provisions and collective labour agreements, as well as in cases 
in which men and women receive unequal pay for equal work which 
is carried out in the same establishment or service, whether 
public or private". 
13 
iii. Actual or Hypothetical Comparators 
Neither Article 119 of the EC Treaty nor Article 1 of the Equal Pay 
Directive specify any requirement of an actual comparator of the 
opposite sex . 
In the case of McCarthys Ltd v Wendy Smith (12) , Ms Smith argued 
that a female worker can rely on Article 119 of the EC Treaty in 
order to claim the pay to which she would be entitled if she were 
a man, even if there are or were no male employees in the 
undertaking or service concerned who perform or performed the same 
work (the "hypothetical male worker" criterion). She was supported 
in her arguments by the Commission and by the Advocate-General. 
However, the Court rejected Ms Smith's arguments on the basis 
that: 
"in cases of actual discrimination falling within the scope of 
the direct application of Article 119, comparisons are confined 
to parallels which may be drawn on the basis of concrete 
appraisals of the work actually performed by employees of 
different sex within the same establishment or service". 
Therefore, applying the principle of equal pay found in Article 119 
of the EC Treaty, the woman is required to show there is an actual 
man employed who receives or received more pay than the woman doing 
equal work for the employer. 
McCarthys rules that a hypothetical comparison cannot be made under 
Article 119 of the EC Treaty, in circumstances where it is alleged 
that the same work is being undertaken by the woman and the man. 
However, the Court's reluctance to allow a claim based on the 
"hypothetical comparator" was, after all, linked to its reluctance 
to accord direct effect to Article 119 of the EC Treaty in cases of 
disguised and indirect discrimination . As it has long since 
abandoned that reluctance, it may perhaps yield, in the future, to 
the arguments in favour of the "hypothetical male comparator". 
14 
It must be pointed out that in another context (13 ), the Court has 
already held that in cases of direct discrimination on the basis of 
the criterion of sex, the requirement for a male comparator to be 
adduced may even not apply. 
iv.Contemporaneous employment 
The principle of equal pay for equal work is not confined to a 
situation where the woman undertakes equal work contemporaneously 
with the male comparator where it is established that she receives 
less pay than her predecessor carrying out the equal work 
(McCarthys v Smith). 
v. Are Comparisons Restricted to the Same Establishment? 
It is clear that work compared for the purpose of determining 
whether it is of equal value encompasses diverse jobs. 
Defrenne II makes it clear that comparisons for the purpose of 
determining equal work are at least possible in the "same 
establishment". It is not clear however that this must be 
understood as excluding comparisons between different 
establishments within the same employment structure. Indeed, a 
restriction of this nature could easily defeat the purpose of the 
principle of equal pay for work of equal value given that women 
often work in different plants from men employed by the same 
company. 
In Defrenne II, the Court gave a clear guide to the Member States 
on the implications of the complete implementation of Article 119 
of the EC Treaty and the Directive as it would affect 
"not only..individual undertakings but also entire branches of 
industry and even of the economic system as a whole, and may in 
certain cases involve the elaboration of criteria whose 
implementation necessitates the taking of appropriate measures 
at Community and national level" (14) 
15 
This comment was made specifically in the context of extending the 
narrow criterion of equal work to encompass the principle of equal 
pay for work of equal value established by the provisions of 
Convention N° 100 on equal pay concluded by the International 
Labour Organisation in 1951. 
However, it is not clear whether the approach extends the scope of 
comparison of the jobs undertaken by women and men to cover the 
enforcement of the right to equal pay to intra-or-cross industry 
claims. In Defrenne II, the Court was pointing to the need for more 
detailed provisions than those contained in Article 119 of the EC 
Treaty in order for this to be possible. Much therefore depends on 
the nature of national provisions implementing the principle of 
equal pay. 
Member States in the Defrenne II case recognised the potential 
financial impact of eliminating gender discrimination in pay 
systems across all sections of industry. 
The United Kingdom submitted that: 
"the cumulative effects of the resulting increases in labour 
costs would seriously aggravate the problems of controlling 
inflation. The financial implications vary in terms of the 
proportion of women doing "equal work" with men, the difference 
between men's rates and woman's rates for equal work, liquidity 
problems and the proportion of labour costs to total costs. 
The footware and food industries, laundries, retail distribution 
and the clothing industry have a particularly high proportion of 
women doing equal work. The highest differential between men's 
rates and women's rates exist in the textile, clothing, 
footware, biscuit manufacturing and engineering industries. Many 
firms, in various sectors, have serious cash flow problems. 
16 
The proportion of labour costs to total costs is particularly 
high in the ship building, instrument engineering, clothing, 
paper and printing and pottery industries. 
The clothing industry is thus running a particularly high 
potential risk. Discrimination in rates of pay between men and 
women is not limited to any particular type of occupation. 
The overall increase in labour costs as a result of introducing 
equal pay is likely to be of the order of 3.5% of the National 
Wages and Salaries Bill, which was intended to be spread over 
five years ending 1975". 
Ireland submitted that equal pay: 
"would involve extremely heavy financial obligations. As regards 
the private sector it appears that these obligations cannot be 
directly estimated. They must, however, affect privately owned 
companies and small firms, the activities of the textile, 
clothing and footware, food processing, light engineering and 
paper and printing industries in particular, as well as sections 
of the retail trade. In many of the sectors referred to the 
majority of the work force would have a claim for equal pay. 
The average figure for the order of increase in wages and salary 
bills involved in the immediate implementation of equal pay for 
men and women in manufacturing industry would be 5%. It would be 
high in the most sensitive sectors". 
In the infringement proceedings against Denmark (15), the Advocate-
General set out his view of the full implications of implementing 
equal pay for work of equal value: 
17 
"as appears from the second sentence of Article 1 of the 
Directive however, a comparison of duties within the same fixed 
establishment of an undertaking or even within a single 
undertaking will not always be sufficient. In certain 
circumstances comparison with work of equal value in other 
undertakings covered by the collective agreement in question 
will be necessary. 
As is correctly observed in the annual report for 1980 of the 
Danish Council for Equal Treatment of Men and Women submitted by 
the Commission as Annex VIII to its application, in sectors with 
a traditionnally female work force, comparison with other 
sectors may even be necessary. 
In certain circumstances, the additional criterion of the same 
place of work for work of equal value may therefore place a 
restriction on the principle of equal pay laid down in Article 
119 of the Treaty and amplified in the Directive in question. 
The mere fact that such a supplementary condition for equal pay 
which has no foundation in Article 119 or in the Directive has 
been added must in any event be regarded as a infringement of 
the Treaty. That supplementary condition limits the scope, 
governed by the Treaty, of the extension of the principle of 
equal pay for men and women to activities for equal value". 
The Court was not specifically asked to rule on this point since 
the proceedings concerned only the failure of Denmark to articulate 
in national law the principle of equal pay for work of equal value 
at all rather than the extent of comparisons between organisations. 
A number of the cases before the Court have concerned the operation 
of national legislative provisions (Rinner-Kuhn (16) Botel (17)), 
and national collective agreements (Danfoss (18) Nimz (19), Rummler 
(20), Kowalska (21)). 
18 
Such provisions and agreements clearly span different establishments 
and, in a number of instances, different industries. This, therefore, 
has implications for any geographical or regional restrictions on 
comparisons. The laws in a number of Member States (Germany, Italy and 
Greece) are silent on the question of whether or not intra-industry 
comparisons are possible. However, in some cases it appears that such 
comparisons may not be excluded in circumstances where the applicant and 
comparator are covered by the same collective agreement. 
At the same time there is also on occasions, a restrictive approach to 
comparisons in the same organisation which preclude comparisons between 
groups of workers covered by different collective agreements. Such 
restrictions fail to take account of the segregated nature of the labour 
market in which men and women will often be covered by separate 
agreements because of their different occupations. 
Very recently, the Court was asked to rule on this point in the case 
Enderbv (22) . The Court's ruling was made in a case referred by the Court 
of Appeal of England and Wales involving a female speech therapist, who 
brought an action against her employers for sex discrimination. 
Mrs Pamela Enderby's rate of pay set by a collective agreement. Her union 
also negotiated with her employer, under a different collective 
agreement, on behalf of a group of people including pharmacists and 
physiotherapists. The latter's pay rates, at the same level of seniority, 
were significantly greater than Enderby's. She therefore brought an equal 
pay claim, based on the work of the pharmacist and physiotherapist 
(largely staffed by men) which is assumed to be of equal value to her own 
work as a speech therapist (which is overwhelmingly a female 
profession) 
The Court was asked whether it was sufficient justification for the 
difference in pay if the rates of pay for the jobs in question had been 
decided by collective bargaining processes which considered separately 
have no discriminatory effect. 
19 
The Court held that "the fact that the rates of pay at issue are decided 
by collective bargaining processes conducted separately for each of the 
two professional groups concerned, without any discrimination effect 
within each group, does not preclude a finding of prima facie 
discrimination where the results of those processes show that the two 
groups with the same employer and the same trade union are treated 
differently. If the employer could rely on the absence of discrimination 
within each of the collective bargaining processes taken separately as 
sufficient justification for the difference in pay, he could easily 
circumvent the priciple of equal pay by using separate bargaining 
processes" (23). As in Defrenne II (4), the decision of the Court in 
Enderby does not deal with the question of intra-or-cross industry 
claims. 
Chapter 2: Job Classification, Job Evaluation and Discrimination 
a) Job Classification and Job Evaluation 
Job classification tends to be the term used on the mainland of 
Europe whilst the term job evaluation is used in United Kingdom and 
in Ireland. Job classification is often a non-analytical process used 
to categorise jobs. These type of schemes are used extensively 
throughout Europe. Job evaluation is often perceived to be an 
analytical means by which the relative job demands are assessed. 
Job evaluation or classification is a mechanism which can be used to 
determine the hierarchy or hierachies of jobs in an organisation or 
group of undertakings as the basis for explaining a pay system. 
It sets out to measure the relative value of jobs, not that of the 
job holders. Ideally, the performance of the individual should not 
enter into job evaluation although, in practice, it may be difficult 
to dissociate individuals from their jobs. 
20 
The aim of such schemes is to provide an acceptable rationale for 
determining the pay of existing hierarchies of jobs. They were and 
remain a management tool to achieve an acceptable rank order of jobs, 
implemented unilaterally or with varying degrees of participation by 
the workforce. Acceptability, consensus and the maintenance of 
traditional hierarchical structures are essential ingredients of 
such mechanisms. 
Job evaluation schemes do not directly determine rates of pay. The 
rate for the job or the salary market for a job grade is influenced 
by a number of factors outside the scope of most schemes. Often, the 
pay determinants and indeed hierarchies are linked to external market 
pay rates, the relative bargaining strengths of the negotiating 
bodies and traditional patterns of pay differentials between jobs. 
Job evaluation is concerned with relationships, not absolutes. 
It cannot measure in definite terms the inherent value of a job to 
the organisation, it is essentially a comparative process: 
comparisons with other jobs, comparisons against defined standards 
or comparisons of the degree to which a common criterion or factor 
is present in different jobs (24). 
Generally, such systems fall into two identified categories; a) 
analytical or b) non-analytical. In general terms, the distinction 
between the two categories is that jobs are either broken down into 
their component elements for the purposes of comparison (analytical) 
or alternatively, the relative worth of the jobs may be based on a 
whole job comparison (non-analytical). 
The more formal types of schemes, particulary analytical schemes, may 
be more objective than non-analytical classification of jobs. 
However, no scheme can ever be fully objective since the whole 
process is based on a series of judgements made about facts presented 
to evaluators. These judgements reflect each evaluator's background, 
experience, and attitudes. 
21 
However, analytical schemes can be used to improve the mechanisms by 
which work is assessed in that they require the collection and 
analysis of data about the content of work to be consistent. The 
articulation of criteria and factors means that evaluators may have 
to justify decisions about the ranking of jobs in a more objective 
way rather than relying on subjective opinion. 
A disadvantage from the point of view of assessing whether different 
work is of equal value is that many systems for comparing jobs are 
unable to take account of the diverse content of jobs and are not 
capable of comparing the very different types of jobs. Generally, 
they cover only parts of organisations where "families" of jobs of 
a similar nature can easily be compared for the purpose of ranking 
eg. Production and production related jobs - unskilled operative, 
semi-skilled operative, skilled operative , "tradesman", chargehand, 
supervisor, manager. 
Often, different hierarchies of jobs based on different evaluation 
and classification schemes co-exist in an organisation with no common 
yardstick from which to measure the relative value of diverse groups 
of jobs, for example, production and clerical workers. Since it was 
not perceived as necessary to compare, for example, the relative 
demands of the job of a secretary with those of a skilled production 
worker, there is no basis from which to determine whether the 
traditionally female job of secretary is equally demanding as the 
often traditionally male job. 
It has been argued that job evaluation is inflexible. It sets out 
to assess only the demands of a range of jobs. It does not take 
account of market forces or individual performance. Changes in some 
organisations are leading to the dismantling of hierarchical 
structures and their replacement with flatter more flexible 
workforces undertaking interchangeable tasks. Often an analysis of 
average pay levels, gender and job grades reveals organisations that 
are in practice less hierarchical than would appear. 
22 
These features of traditional job evaluation and classification 
become significant when attempting to address gender inequality in 
pay systems. Given the segregation of male and female workers, the 
relative worth of work needs to be* measured by reference to a common 
standard within one place of employment, within an industry or 
between industries. Equally, the different elements in female work 
need to be identified and valued in the same way as those present in 
male work. 
Pay systems based on such schemes may have been in place in 
organisations for many years and the traditional hierarchies of jobs 
often predate, without any review, the introduction of legislation 
on gender equality and the increased participation of women in the 
workplace. Many of the systems incorporate and legitimate the 
tradition of paying women less even when they undertake the same jobs 
as men. 
b) Job Evaluation and Classification and European Law 
Article 1 of the Equal Pay Directive provides: 
"In particular, where a job classification system is used for 
determining pay, it must 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 Directive does not mandate the implementation of job 
classification by employers to determine pay. However, it prohibits 
gender discrimination where such systems are used by employers as a 
basis for determining pay rates. There is no definition in the 
Directive of the term "a job classification system". 
A number of judgments of the Court have contained guidance on the 
role and nature of job classification and job evaluation. 
23 
In Defrenne v Sabena II (25), the European Commission drew the 
Court's attention "to the diversity of the traditional methods of 
wage formation and the widely differing systems of job 
classification" which existed in the Community, in the context of the 
difficulties of implementing equal pay between women and men. 
In McCarthys Ltd v Wendy Smith (26), the Court recognised that, in 
order to identify indirect and disguised discrimination, there was 
a need for: 
"comparative studies of entire branches of industry and therefore, 
as a prerequisite, the elaborating by the Community and national 
legislative bodies of criteria of assessment". 
This would appear to encompass classification and evaluation 
techniques as well as statistical analyses of pay and gender 
differences. 
In the jurisprudence of the Court, the term "job classification" 
appears to be used to include any technique which categorises jobs 
whether formal or informal, analytical or non-analytical. The term 
covers both classification and evaluation. It does not appear to be 
used in a technical sense. In the infringement proceedings against 
the United Kingdom, the respondent government tends to refer 
throughout its submissions to "job evaluation" and the Court refers 
in its judgement to "job classification". Neither term is ever 
defined. 
The Court held that the United Kingdom had failed to implement the 
provisions of Directive 75/117 because: 
"it has not introduced into its national legal system measures 
necessary to enable all employees who consider themselves wronged 
by failure to apply the principle of equal pay for men and women 
for work to which equal value is attributed and for which no system 
of job classification exists to obtain recognition of such 
equivalence (27)". 
24 
In coming to this decision it found that: 
"the job classification system is, under the Directive, merely one 
. of several methods for determining pay for work to which equal 
value is attributed(28)". 
The Court found that the UK governement ' s interpretation of the 
Directive: 
"amounts to a denial of the very existence of a right to equal pay 
for work of equal value where no classification has been made. Such 
a position is not consonant with the general scheme of provisions 
of the Directive. The preamble to the Directive indicates that its 
essential purpose is to implement the principle that men and women 
should receive equal pay contained in Article 119 of the Treaty and 
that it is primarily the responsability of the Member States to 
ensure the application of this principle by means of appropriate 
laws, regulations and administrative provisions in such a way that 
all employees in the Community can be protected in these 
matters(29)". 
The UK government had argued that there was no provision in the 
Directive enabling an employee to insist on the determination of pay 
by a job evaluation system. On that basis, the UK government 
concluded that the worker cannot insist on a comparative evaluation 
of different work by a job evaluation method, the introduction of 
which is at the employer's discretion. 
The Court spelt out the role of job classification systems in the 
context of the principle of equal pay set out in the Directive: 
25 
" the principle is defined in the first paragraph of Article 1 so 
as to include under the term the same work, the case of work to 
which equal value is attributed and the second paragraph emphasises 
merely that where a job classification system is used for 
determining pay it is necessary to ensure that it is based on the 
same criteria for both men and women and so drawn up to exclude any 
discrimination on grounds of sex. 
It follows that where there is a disagreement as to the application 
of that concept, a worker must be entitled to claim before an 
appropriate authority that his work has the same value as other 
work and if that is found to be the case to have his rights under 
the Treaty and the Directive acknowledged by a binding decision. 
Any method which excludes that option prevents the aim of the 
Directive from being achieved"(30) 
The Court held that: 
"the implementation of the Directive implied that the assessment of 
the "equal value" to be attributed to particular work may be 
effected notwithstanding the employer's wishes, if necessary in the 
context of adversarial proceedings. The Member States must endow an 
authority with the requisite juridiction to decide whether work has 
the same value as other work after obtaining such information as 
may be required" (31) . 
In considering alternatives to job classification by means of 
resolving equal value claims, the Commission set out its view of the 
obligation of Member States: 
"to determine whether two different jobs have an equal value, they 
must be compared one with the other or evaluated against a common 
standard. That being so, Member States have a duty to set up a 
system whereby employees are able to obtain, if necessary by 
recourse to the courts, equal pay for work of equal value. 
26 
This means that it is not necessary to oblige all employers to 
adopt job evaluation schemes, but at the same time enabling 
employers to choose whether or not to introduce such schemes 
without makinq any provision for equal pay in respect of jobs of 
equal value where they do not, is inadequate(32)". 
The Commission found that in many cases, work of equal value will be 
compared within the framework of a collective agreement or under a 
job evaluation scheme or even more informally without any details of 
the jobs being obtained. As mentioned earlier, various Member States 
have introduced a variety of mechanisms to determine whether work was 
of equal value. 
In Belgium, France, Italy, Luxembourg and Germany the duty lay with 
"work inspectorates". In the Netherlands, the question of whether 
work is of equal value was assessed on the basis of "a reliable 
system of job evaluation". Under Irish legislation, any dispute on 
the subject of equal pay could be referred to one of three equality 
officers. 
The UK government emphasised practical considerations and saw that 
"considerable expense" would be involved in "compulsory evaluation 
schemes". 
It is clear from the United Kingdom case that there is no obligation 
on employers to introduce job classification or job evaluation 
schemes. The obligation is that where an organisation uses such a 
scheme it must not discriminate on grounds of gender. This is to 
state no more than that legislation, collective agreements and pay 
systems covering the issue addressed by the Directive must not be 
discriminatory on grounds of gender. 
27 
Where a dispute arises as to whether work is of equal value, the 
Member States are required to provide a process by which an 
assessment of value can be made. Such a process appears to involve 
in all Member States to a greater or lesser extent, some form of 
comparison based on job evaluation or classification techniques. 
In the case of Rummler v Dato Druck GmbH (31), Ms Rummler who was 
employed by a printing firm, sought reclassification to a higher 
category in the pay scale. The conditions of the remuneration of the 
printing industry were governed by a Framework Wage Rate Agreement 
for Industrial Employees of the Printing Industry in the territory 
of the Federal Republic of Germany including West Berlin. It provided 
for seven wage groups, corresponding to the work carried out and 
determined according to the following factors: 
a) Degree of knowledge 
b) Concentration 
c) Muscular demand or effect 
d) Responsibility 
Ms Rummler felt she should be classified as wage group 4 not 3 
because in particular she was required to pack parcels weighing more 
than 20 kilogrammes, which for her represented heavy physical work. 
To be reclassified to wage group 4, the weights had to be more than 
50 kilogrammes. 
The Arbeitsgericht Oldenburg referred to the Court the question 
of whether a job classification system based on criteria of muscle 
demand or muscular effort and the heaviness of work was compatible 
with the principle of equal pay for men and women. 
The Court having determined that the nature of the work should be 
considered "objectively" held that: 
28 
"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" (34). 
The Court laid down three guiding principles following from paragraph 
2 of Article 1 of Directive 75/117 that: 
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 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 (35)". 
These guiding principles set out that in the context of a dispute a 
job classification system under Article 1 paragraph 2 of the 
Directive must be formal, analytical, factor based and non­
discriminatory. 
29 
The Danfoss (36) case concerned a system of pay, set out in a 
collective agreement, according to which all workers of the same 
category received the same basic salary. Under the collective 
agreement, however, the employer was allowed to make additional 
payments to individuals within a grade on the basis of a number of 
criterion - flexibility, vocational training and seniority. 
The Court 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. 
The concept of transparency articulated in Danfoss is applicable to 
every element of the determination of a pay system, including any 
form of classification. 
In Danfoss, the work of the women and male comparators was 
established as equal. 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. 
Generally, it appears that the laws of Member States provide that 
grading, classification and evaluation systems are matters to be 
taken into account in the same way as any other reason put forward 
by employers to justify a pay differential once the nature and 
demands of the work compared have been assessed objectively. 
30 
However, in the courts of some Member States, when considering such 
schemes as justifications for pay differentials, there appears to be 
a reluctance to scrutinise to any great degree the operation of job 
evaluation or classification schemes to determine whether they are 
discriminatory. 
This is particularly so where the schemes appear to be analytical. 
There is also little doubt that applicants, their trade union 
representatives, lawyers, national labour inspectorates and indeed, 
in some instances specialist agencies themselves are unable to assist 
the courts in identifying gender discrimination in schemes owing to 
their own lack of understanding of the topic. 
c) The Implementation of Pay Structures 
The implementation of modified job evaluation and classification 
schemes designed to address positively the undervaluing of women's 
work may be limited by economic constraints. For example, a modified 
scheme may revalue women's work as equivalent to male work. However, 
in attaching pay rates to the new system the amount selected may not 
reflect the male pay rate but rather a lower figure. 
In such circumstances, male jobs may remain on protected pay rates 
as an interim measure. However, the long term effect may be, in 
reality, the introduction of a pay rate which is in fact the female 
rate for all employees. This, of course, implies an overall worsening 
of conditions, which is not the result aimed at by the social 
provisions of the Treaty. 
31 
The principle of "levelling-up" (extension of the more favourable 
provision to the disadvantaged group in cases where discrimination 
has been determined) has been enunciated in a number of cases before 
the Court. In general terms, the Court considers that in the face of 
a discrimination contrary to Community law, the group set at a 
disadvantage by that discrimination is entitled to be treated in the 
same manner, and to have the same rules applied to it, as the others 
recipients, since those rules remain the only valid point of 
reference.(37) 
Quite recently, in Kowalska v Freie und Hansestadt Hamburg the Court 
held that: 
"where there is indirect discrimination in a clause in a collective 
wage agreement, the class of persons placed at a disadvantage by 
reason of that discrimination must be treated in the same way and 
made subject to the same scheme, proportionately to the number of 
hours worked, as other workers, such scheme remaining for want of 
the correct implementation of Article 119 of the EEC Treaty in 
national law, the only valid system of reference (38)". 
In Nimz again, the Court held: 
"where there is indirect discrimination in a provision of a 
collective agreement, the national court is required to set aside 
that provision, without requesting or awaiting its prior removal by 
collective négociation or any other procedure, and to apply to 
members of the group disadvantaged by that discrimination the same 
arrangements which are applied to other employees, arrangements 
which failing the correct application of Article 119 of the EEC 
Treaty in national law, remains the only valid system of reference 
(39)". 
32 
These two judgements merely confirmed an established line of case-law 
whereby, in the absence of measures to implement Article 4(1) of 
Directive 79/7 "woman are entitled to be treated in the same manner, 
and to have the same rules applied to them; as men who are in the 
same situation" (40). 
The legislation of Luxembourg and the UK specifically require the 
application of the more favourable term to the disfavoured group. 
However, where the legislation is silent, in Germany and Belgium for 
example, the courts have not ruled out the non-application of the 
benefit for all employees. 
Chapter 3 : Pay for the Purposes of Article 119 of the EC Treaty 
Article 119 of the EC Treaty provides a broad definition of pay: 
"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 employment from 
his employer". 
The Court has repeatedly held that the concept of pay within the 
meaning of the second paragraph of Article 119 of the EC Treaty, 
encompasses all benefits in cash or in kind, present or future, 
provided they are paid, albeit indirectly, by the employer to the 
worker in connection with his employment (41). 
a) Basic and additional pay 
Individual pay supplements to basic pay (Danfoss) (42) and 
increments based on seniority (Nimz) (43) in addition to basic and 
minimum pay fall within the scope Article 119 of the EC Treaty. It 
would appear therefore that any direct payments supplementing a 
basic wage are covered. 
33 
This would appear to include shift premia, overtime and all forms 
of merit and performance pay. In the Bôtel (44) case, it was held 
that time off with pay for a part-time employee undertaking Works 
Council training, constitued pay. Supplements to "heads of 
households" are included in the concept of pay (European Commission 
v Luxembourg) (45). 
b) Contractual and non-contractual 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 Article 119 of the EC Treaty. Gratuities paid at the discretion 
of an employer are encompassed (Garland) (46). 
Thus pay, whether under a contract, statutory or collective 
provisions or on a voluntary basis is covered. In Botel (47), the 
Court held that the payment of wages during time out for Works 
Council training constituted pay for the purposes of Article 119 of 
the EC Treaty and this should be available to a part-time employee 
irrespective of whether the training was during her normal working 
hours or not. 
Under the UK's Equal Pay Act 1970 as amended, claims for equal pay 
are restricted to elements of pay which are contractual. Where an 
applicant seeks to claim the benefit of gratuities this aspect of 
her claim must be made under the Sex Discrimination Act 1975. This 
procedural complexity places an added burden on an applicant to 
identify precisely the nature of the remuneration and the correct 
legislation before her claim can succeed. 
c) Benefits 
Benefits calculated in monetary terms, such as sick pay allowances 
constitute pay (Rinner-Kuhn) (48). In addition the monetary 
calculation for time off to pursue works council training has been 
found to constitute pay (Botel) (49). 
34 
d) Deferred Benefits 
Pensions, travel facilities obtainable on retirement and severance 
schemes have all been found to constitute pay (Garland, (50), 
Barber (51)). 
It appears therefore that all forms of occupational pension schemes 
are covered by Article 119 of the EC Treaty. Only pensions paid by 
the State acting as such are excluded. 
e) Social Security Benefits and pay 
In accordance with Article 119 of the EC Treaty, "pay" means not 
only wages or salary but also "any other consideration, whether in 
cash or in kind which the worker receives directly or indirectly in 
respect of his employment from his employer" . It is important to 
know whether benefits under social security schemes have to be 
considered as pay within the meaning of this Article. 
This question was referred to the Court for a preliminary ruling in 
the Case 80/70 Defrenne v the Belgian State (52). In its judgement 
of 25 May 1971 in the Defrenne Case (case 80/70), the Court made 
its position clear; the Court, following the conclusions of the 
Advocate-General, said that the concept of the considerations paid 
directly or indirectly in cash or in kind could not encompass 
schemes directly governed by legislation (statutory schemes) 
without any element of agreement within the undertaking or the 
occupational branch concerned which are compulsorily applicable to 
the general category of workers. The Court noted that for the 
funding of such schemes workers, employers and the public 
authorities contribute in a measure determined less by the 
employment relationship than by considerations of social policy. 
For these reasons, the Court concluded that "any other, 
consideration" could not be regarded as encompassing the benefits 
from statutory social security schemes. 
35 
On the other hand, however, this line of reasoning, as the 
Commission deduced immediately, means that company schemes are 
included by virtue of the fact that they are not directly governed 
by legislation. They involve an element of agreement within the 
undertaking or the branch, they are not compulsory for general 
categories of workers but for the categories in the undertaking or 
the branch and are financed by employers or workers who contribute 
directly, depending on the funding needs of the schemes and not on 
considerations of a social policy. This approach was confirmed in 
1986. 
The Court ruled in Case 170/84 Bilka-Kaufhaus v Weber (53) that the 
exclusion of part-time workers from the benefits of an occupational 
pension financed solely by the employer was prohibited by Article 
119 of the EC Treaty where it could be established that such a 
measure would mainly affect female workers unless the undertaking 
showed that the exclusion was based on objectively justified 
factors unrelated to any discrimination on ground of sex. 
It should be borne in mind that the Court's judgement in the Bilka 
case (see above) came at a moment when negotiations within the 
Council on the adoption of Directive 86/378/EEC relating to the 
equality of treatment between men and women in the field of 
occupational schemes had been terminated and that, when it was 
adopted, the Commission placed on record its reservations as to the 
conformity of some provisions of the Directive with the Article 119 
of the EC Treaty as the Court had just interpreted it in this case. 
With its judgement of 17 May 1990 (54), the Court confirms the 
Commission's original interpretation and the decision in the Bilka 
case and no longer leaves any room for doubt; social benefits under 
the terms of an occupational scheme fall within the concept of pay 
within the meaning of Article 119 of the EC Treaty. 
36 
f) Pay and other Working Conditions 
Increasingly, the Court blurs the distinction between "pay" and 
access to benefits. In a number of cases, it has found that the 
exclusion from a benefit because of age or hours of work thresholds 
falls under "pay" for the purposes of Article 119 of the EC Treaty 
and not under the provisions of the Equal Treatment Directive 
(Defrenne III (55), Kowalska (55), Bilka (57) and Nimz (58)). 
g) Total Pay Package v Identifiable terms 
In Barber (59), the Court considered of fundamental importance the 
concept of "transparency" in relation to "pay" under Article 119 of 
the EC Treaty. 
It decided: 
"if the national courts were under an obligation to make an 
assessment and a comparison of all the various types of 
consideration granted to men and women, judical review would be 
difficult and the effectiveness of Article 119 of the EC Treaty 
would be diminished as a result. II follows that genuine 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 (60). 
The Court ruled that: 
"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 comprehensive assessment of the consideration paid to workers 
(61)". 
37 
Thus, arguments which maintain that it is the total package of pay 
and benefits between women and men undertaking equal work which must 
be identical, appear unacceptable. 
However, in Ireland and Belgium, the courts have held that the 
relevant comparison for determining equal pay is the total package 
of benefits and not the identifiable unfavourable benefit (Belgium -
Labour Court of Antwerp - 27.3.84 - and Ireland - Labour Court 
Lissadell Towels v 56 women). This would appear to be contrary to 
European law. 
The full implications of a complete implementation of Article 119 of 
the EC Treaty and the Equal Pay Directive mean that where work is 
found to be of equal value, the favourable elements of terms and 
conditions apply equally to the female and male jobs. 
38 
PART III: THE NEED FOR FURTHER MEASURES TO PROMOTE THE PRACTICAL 
ACHIEVEMENT OF EQUAL PAY FOR WORK OF EQUAL VALUE 
Whilst all Member States have incorporated the fundamental principle 
of equal pay into their national legislation and the judgement given 
by the European Court of Justice in the Barber case (62) has 
considerably clarified the scope of Article 119 of the EC Treaty, 
there has been little effective progress on achieving the principle 
of equal pay in practice. 
It is imperative that the fundamental right to equal pay under 
Article 119 of the EC Treaty as amplified by Directive 75/117/EEC is 
fully implemented at Community level. This is especially important, 
in view of the fact that the Maastricht Treaty * has reiterated the 
Community's commitment to this principle. 
The Commission believes that, in addition to the purely legislative 
aspects, any strategy to promote the practical achievement of equal 
pay for work of equal value has to incorporate other features, which 
can be articulated around some key ideas : 
It should be noted that Protocol no. 14 of the Treaty on European Union on 
social policy and the annexed Agreement on social policy concluded by the 
Member States of the European Community with the exception of the United 
Kingdom of Great Britain and Northern Ireland contains in Article 6 (3) 
thereof an additional element in relation to equal pay. It provides that : 
"This Article shall not prevent any Member State from maintaining or 
adopting measures providing for specific advantages in order to make it 
easier for women to pursue a vocational activity or to prevent or compensate 
for disadvantages in their professional careers." 
It might also be noted that the Protocol and the said Agreement 
are without prejudice to the provisions of the Treaty, "particularly those 
relating to social policy which constitute an integral part of the acquis 
communautaire" . 
39 
1. Improvement of baseline data on women and pay 
The need for adequate data for accurate wage comparisons between 
men and women across broad sectors and occupations throughout the 
Community has never been greater. There is an increasing demand 
for up-to-date gender-specific data. 
The Commission therefore calls on Member States to undertake and 
improve the systematic collection of essential data on gender pay 
and occupational segregation to identify wage discrimination. In 
appropriate cases, the Commission is prepared to contribute to 
such an action, either financially or by means of the Statistical 
Office of the European Communities (EUROSTAT). 
2. Improved dissemination of information 
The Commission would encourage the organisation of research, 
seminars and conferences on the characteristics of payment systems 
and their impact on the gap between men's and women's earnings. 
Lack of awareness of significant cases based on Community law is 
a major disadvantage in progressing equality issues. Therefore, 
the Commission , in association with the Member States, will try 
to improve the dissemination of information on significant cases 
based on Community law, to ensure that these developments can be 
taken into account in national litigation. 
3. Training 
The Commission would encourage the organisation of further 
practical and legal training at both Community level and 
throughout the Member States on the implementation of equal pay 
in order to improve the knowledge of the legal provisions and 
practical ways of addressing equal pay. 
40 
4. Legal action 
The Commission will continue to have recourse to proceedings under 
Article 169 of the Treaty where this is considered appropriate. 
Green Paper on European Social Policy : Options for the Union (63) 
Further action which might be taken at Community level will be 
considered in the context of the Green Paper on the future 
European Social Policy presented by the Commission. 
Among the options which the Commission considers warrant attention 
is the possibility of adoption of certain basic principles which 
could serve as guidelines for joint negotiations on job 
classification and job evaluation at various levels, without 
prejudice to the autonomy and individual responsabilities of the 
social partners. 
Some of these guidelines could be used as a basis for a Code of 
Practice on the implementation of equal pay for work of equal 
value. The idea of Code of Practice with regard to the treatment 
of weaker groups of workers has already been floated in the 
Opinion on an Equitable Wage adopted by the Commisssion on 1 
September 1993 (64). 
A code of practice on equal pay might include, for example : 
publicising in the workplace the right to equal pay for work 
of equal value. 
how to monitor the workplace by gender, occupation and pay 
and benefits in the light of European and national 
obligations. 
how to analyse monitoring information to determine the 
existence and extent of wage discrimination. 
41 
explaining the types of strategies that can be adopted to 
address wage discrimination, eg. revision of flat rate pay, 
integrating grades and categories of gender segregated 
workers, developing non-discriminatory job evaluation 
schemes, redefining educational qualifications, reorganising 
work. 
providing guidance on developing non-discriminatory job 
evaluation schemes:- making visible and capturing female 
work, analysing factors, levels and weighting to exclude 
discrimination, administration, implementation and 
maintenance of schemes. 
how to develop a strategy for addressing wage discrimination 
appropriate to the organisation. 
how to implement the strategy to address wage discrimination, 
eg, the role of average paylines, modifying pay systems, red-
circling. 
It is envisaged that such a Code would be directed primarily at 
the social partners in order to raise awareness, to provide a 
training resources and to develop confidence to address this 
complex issue in the context of collective bargaining. 
In this context, it is clear that one of the most innovative 
features of the Social Protocol of the Maastricht Treaty is the 
increased participation of the social partners both in the 
formulation and implementation of Community legislation which 
offers new possibilities in the field of equal pay. 
42 
NOTES 
1. COM (90) 449 final 
2. O.J. C 142, 31 May 1991 
3. Eurostat 1991 
The absence of comprehensive data prevents wholly accurate wage 
comparisons between women and men across broad sectors and 
occupations throughout the European Community. 
4. Case 43/75, Gabrielle Defrenne v Society Anonyme belge de 
navigation aérienne Sabena, (1976) ECR (European Court Reports), 
page 455 
5. Case 61/81, Commission of the European Communities v the United 
Kingdom of Great Britain and Northern Ireland, (1982) ECR page 
2601. 
6. Case 129/79, (1980), page 1289 paragraph 15 
7. Case 237/85, (1986), ECR page 2101 
8. Case 157/86, (1988), ECR page 673 
9. Case 96/80, (1981), ECR page 911 
10. Case 184/89, (1991) ECR page 322 
11. ibid 4 above, page 476, paragraph 40 
12. ibid 6 above 
13. Case 177/88, Dekker v Stichting Vormingscentrum voor Jonge 
Volwassenen (1990) ECR page 3941, paragraph 17 
43 
14. ibid 4 above page 472, paragraph 19 
15. Case 143/83, Commission of the European Communities v Denmark, 
1985, ECR page 427 
16. Case 171/88, Rinner-Kuhn v FWW Spezial - Gebàudereinigung (1989) 
ECR page 2743 
17. Case 360/90, Arbeiterwohlfahrt der Stadt Berlin v Botel, judgement 
of 4 June 1992 
18. Case 109/88, Handels-OG Kantorfunktionaerernes Forbund i Danmark 
v Dansk Arbejdsgiverforening (1989), ECR page 3199 
19. ibid 10 above 
20. ibid 7 above 
21. Case 33/89, Kowalska v Freie und Hansestadt Hamburg (1990), ECR 
page 2591 
22. Case 127/92 P.M. Enderby v Frenchay Health Authority (FHA) and 
Others, judgement of 27 October 1993, ECR (1993) page 5535 
23. ibid above, paragraph 22 
24. Reward Management, A Handbook of Remuneration Strategy and 
Practice, Michael Amstrong and Helen Murlis. 
25. ibid 4 above 
26. ibid 6 above 
27. ibid 5 above, page 2617, paragraph 14 
44 
28. ibid 5 above, page 2615, paragraph 4 
29. ibid 5 above, page 2615, paragraph 7 
30. ibid 5 above, page 2616, paragraph 8-9 
31. ibid 5 above, page 2617, paragraph 13 
32. ibid 5 above, page 2612 
33. ibid 7 above 
34. ibid 7 above, page 2114, paragraph 13 
35. ibid 7 above, page 2118 - 2119 
36. ibid 18 above 
37. Case 102/88, Ruzius-Wilbrik (1989), ECR 4311, paragraph 21 
38. ibid 21 above, page 2614 
39. ibid 10 above page 322 
40. Judgments of 4 December 1986 in Case 71/85 Federatie Nederlandse 
Vakbeweging (1986) ECR 3855, paragraph 22, of 24 June 1987 in Case 
384/85 Borrie Clarke (1987) ECR 2865, paragraph 13; see also the 
judgments of 24 March 1987 in Case 286/85 Norah McDermott and Ann 
Cotter (1987) ECR 1453, paragraph 17 and of 8 March 1988 in Case 
80/87 A. Dik, A. Menkutos-Demirci and H. G. W. Laar-Vreeman (1988) 
ECR 1601, paragraph 10 
41. Case 262/88, Barber v Guardian Royal Exchange Assurance Group Ltd 
(1990) ECR page 1949 
45 
42. ibid 18 above 
43. ibid 10 above 
44. ibid 17 above 
45. Case 58/81 (1982), ECR page 2175 
46. Case 12/81, Eileen Garland v British Rail Engineering Ltd (1982), 
ECR page 359 
47. ibid 17 above 
48. ibid 16 above 
49. ibid 17 above 
50. ibid 44 above 
51. ibid 39 above, page 1889 
52. Case 80/70, Gabrielle Defrenne v Belgian State, (1971) ECR, page 
445 
53. Case 170/84, Bilka Kaufhaus GmbH v Karin Weber von Hartz, (1986), 
ECR, page 1607 
54 . ibid 39 above 
55. Case 149/77 (1978), ECR page 1365 
56. ibid 21 above 
57. ibid 51 above 
46 
58. ibid 10 above 
59. ibid 39 above, page 1889 
60. ibid 39 above, page 1953, paragraph 34 
61. ibid 39 above, page 1954, paragraph 35 
62. ibid 39 above 
63. COM (93) 551 
64. COM (93) 388 final, adopted on 1 September 1993 
ISSN 0254-1475 
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