Margaret Kenny and Others v Minister for Justice, Equality and Law Reform and Others.
Date: 2013-02-28
18. It should be borne in mind at the outset that, in accordance with the normal rules of evidence, it is, in principle, for the worker who believes himself to be the victim of sex discrimination in pay to establish before the national court that the conditions giving rise to a presumption that there is unequal pay prohibited by Article 141 EC and Directive 75/117 are fulfilled (see, to that effect, Case C-381/99 Brunnhofer  [2001] ECR I-4961, paragraphs 52, 53 and 57).
19. It is accordingly for that worker to prove by any form of allowable evidence that the pay he receives from his employer is less than that of his chosen comparators, and that he does the same work or work of equal value, comparable to that performed by his comparators, so that prima facie he is the victim of discrimination which can be explained only by the difference in sex (see Brunnhofer , paragraph 58).
20. If the worker adduced 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. It would then be for the employer to prove that there was no breach of the principle of equal pay by establishing by any legal means, inter alia, that the activities actually performed by the two employees were not in fact comparable or by justifying the difference in pay by objective factors unrelated to any discrimination based on sex (see, to that effect, Brunnhofer , paragraphs 59 to 62).
23. In that regard, it is true that the Court has already decided that, in such a case, it can rule on the questions referred concerning the justification of a difference in pay without first establishing whether the jobs in question are equivalent (see, to that effect, concerning UK law, Case C-127/92 Enderby  [1993] ECR I-5535, paragraph 11).
26. In such circumstances, it is for the national court, which alone has jurisdiction to find and assess the facts, to make the necessary determination whether, in the light of the actual nature of the activities carried out by those concerned, the workers in question perform the same work or work to which equal value can be attributed (see, to that effect, Case C-236/98 JämO  [2000] ECR I-2189, paragraph 48, and Brunnhofer , paragraph 49). However, in preliminary ruling proceedings, the Court, which is called on to provide answers of use to the national court, may nevertheless provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see Case C-167/97 Seymour-Smith and Perez  [1999] ECR I-623, paragraphs 67 and 68).
27. In that regard, the Court has repeatedly held that, in order to determine whether employees perform the same work or work to which equal value can be attributed, it is necessary to ascertain whether, taking account of a number of factors such as the nature of the work, the training requirements and the working conditions, those persons can be considered to be in a comparable situation (see Case C-309/97 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse  [1999] ECR I-2865, paragraph 17, and Brunnhofer , paragraph 43).
28. Thus, where seemingly identical tasks are performed by different groups of persons who do not have the same training or professional qualifications for the practice of their profession, it is necessary to ascertain whether, taking into account the nature of the tasks that may be assigned to each group respectively, the training requirements for performance of those tasks and the working conditions under which they are performed, the different groups in fact do the same work within the meaning of Article 141 EC ( Angestelltenbetriebsrat der Wiener Gebietskrankenkasse , paragraph 18).
29. Professional training is not merely one of the factors that may be an objective justification for giving different pay for doing the same work; it is also one of the possible criteria for determining whether or not the same work is being performed ( Angestelltenbetriebsrat der Wiener Gebietskrankenkasse , paragraph 19).
36. With regard, first, to what that justification consists of, it must be noted that a difference in the remuneration paid to women in relation to that paid to men for the same work or work of equal value must, in principle, be considered contrary to Article 141 EC and, consequently, to Directive 75/117. It would be otherwise only if the difference in treatment were justified by objective factors unrelated to any discrimination based on sex (see Brunnhofer , paragraph 66 and the case-law cited).
37. 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 (Case C-17/05 Cadman  [2006] ECR I-9583, paragraph 32 and the case-law cited).
39. In accordance with settled case-law, it is the difference in pay which must be justified by objective factors unrelated to any discrimination linked to the difference in sex (see, in particular, Brunnhofer , paragraph 30 and the case-law cited).
42. So far as concerns, second, the group of workers in relation to whom such justification must be provided, it must be noted that if the pay of one group of workers is significantly lower than that of another group and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two groups in question perform duties of equal value and the statistics describing that situation are valid (see, to that effect, Enderby , paragraph 16).
43. In this context, it is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant (see, to that effect, Enderby , paragraph 17, and Seymour-Smith and Perez , paragraph 62).
44. In that regard, it must be noted that a comparison is not relevant where it involves groups formed in an arbitrary manner so that one comprises predominantly women and the other predominantly men with a view to carrying out successive comparisons and thereby bringing the pay of the group consisting predominantly of women to the level of that of another group also formed in an arbitrary manner so that it consists predominantly of men (see Case C-400/93 Royal Copenhagen  [1995] ECR I-1275, paragraph 36).
46. So far as concerns, third, the question whether the interests of good industrial relations may be taken into account to justify objectively a prima facie case of indirect gender discrimination in pay, it must be noted that possible objective justifications must correspond to a real need of the employer, in this instance, the Minister (see, to that effect, Case 170/84 Bilka-Kaufhaus  [1986] ECR 1607, paragraphs 36 and 37, and Brunnhofer , paragraph 67).
47. In addition, it must be recalled that, as is clear from Article 4 of Directive 75/117, collective agreements, like laws, regulations or administrative provisions, must observe the principle laid down in Article 141 EC (see Enderby , paragraph 21).
49. Nevertheless, the Court has previously held that the fact that the rates of pay have been determined by collective bargaining or by negotiation at local level may be taken into account by the national court as a factor in its assessment of whether differences between the average pay of two groups of workers are due to objective factors unrelated to any discrimination on grounds of sex (see Royal Copenhagen , paragraph 46).