B. F. Cadman v Health & Safety Executive.
Date: 2006-10-03
27. Article 141(1) EC 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 (Case C-320/00 Lawrence and Others  [2002] ECR I-7325, paragraph 11).
28. As the Court held in Case 43/75 Defrenne [1976] ECR 455, paragraph 12, that principle, which is a particular expression of the general principle of equality which prohibits comparable situations from being treated differently unless the difference is objectively justified, forms part of the foundations of the Community (see also Case C‑381/99 Brunnhofer  [2001] ECR I-4961, paragraph 28, and Lawrence and Others , paragraph 12).
29. Furthermore, it must be recalled that the general rule laid down in the first paragraph of Article 1 of Directive 75/117, which is principally designed to facilitate the practical application of the principle of equal pay outlined in Article 141(1) EC, in no way alters the content or scope of that principle (see Case 96/80 Jenkins [1981] ECR 911, paragraph 22). That rule provides for the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration for the same work or for work to which equal value is attributed (Case 237/85 Rummler [1986] ECR 2101, paragraph 11).
30. The scope of Article 141(1) EC covers not only direct but also indirect discrimination (see, to that effect, Jenkins , paragraphs 14 and 15, and Case C‑285/02 Elsner-Lakeberg [2004] ECR I-5861, paragraph 12).
31. It is apparent from settled case-law that Article 141 EC, like its predecessor Article 119 of the EEC Treaty (which became Article 119 of the EC Treaty – Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC), must be interpreted as meaning that whenever there is evidence of discrimination, it is for the employer to prove that the practice at issue is justified by objective factors unrelated to any discrimination based on sex (see, to that effect, inter alia, Danfoss , paragraphs 22 and 23; Case C-33/89 Kowalska  [1990] ECR I-2591, paragraph 16; Hill and Stapleton , paragraph 43; and Joined Cases C‑4/02 and C-5/02 Schönheit and Becker  [2003] ECR I-12575, paragraph 71).
32. The justification given must be based on a legitimate objective. The means chosen to achieve that objective must be appropriate and necessary for that purpose (see, to that effect, Case 170/84 Bilka [1986] ECR 1607, paragraph 37).
Recourse to the criterion of length of service
34. By adopting that position, the Court acknowledged that rewarding, in particular, experience acquired which enables the worker to perform his duties better constitutes a legitimate objective of pay policy.
35. As a general rule, recourse to the criterion of length of service is appropriate to attain that objective. Length of service goes hand in hand with experience, and experience generally enables the worker to perform his duties better.
36. The employer is therefore free to reward length of service without having to establish the importance it has in the performance of specific tasks entrusted to the employee.
39. It should be added that where a job classification system based on an evaluation of the work to be carried out is used in determining pay, it is not necessary for the justification for recourse to a certain criterion to relate on an individual basis to the situation of the workers concerned. Therefore, if the objective pursued by recourse to the criterion of length of service is to recognise experience acquired, there is no need to show in the context of such a system that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better. By contrast, the nature of the work to be carried out must be considered objectively ( Rummler , paragraph 13).