EU Database – Equal Pay
Case Name
Facts
Ruling
Principle
Links
Defrenne v
Sabena
80/70
 A case concerning retirement pensions
to civil air crews- a decree issued within
the framework of the general scheme for
retirement pensions and survivor's
pension of workers and more particularly
on a provision of this decree excluding
air hostesses from the scheme in
question.
 The part due from the employers in
financing of such schemes does not
constitute a direct or indirect payment to
the worker.
 A retirement pension established within
the framework of a social security
scheme laid down by legislation does not
constitute consideration which the worker
receives indirectly in respect of his
employment from his employer within the
meaning of the second paragraph of
Article 119.
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e
(Belgium)
 According to the plaintiff, this exclusion is
contrary to the principle of equality laid
down by Article 119 since the benefit of
the pension forms part of the "pay".
 Situations involving discrimination
resulting from the application of such a
system are not subject to the
requirements of Article 119 of the treaty.
Defrenne v
Sabena
43/75
(Belgium)
 A case concerning the context of an
action between an air hostess and her
employer, regarding compensation
claimed by the applicant on the ground
that she suffered as a female worker
from discrimination in terms of pay
compared with male colleagues who
were doing the same work as "cabin
steward".
 The parties agree that the work of an air
hostess is identical to that of a cabin
steward.
 The Member States are bound to ensure
and maintain the "application if the
principle that men and women should
receive equal pay for equal work".
 As regards to equal work, as a general
rule, the national legislative provisions
adopted for the implementation of the
principle of equal pay as a rule merely
reproduce the substance of the terms of
Article 119 as regards the direct forms of
discrimination.
 The principle of equal pay contained in
Article 119 may be relied upon before the
national courts and that these courts
have a provision vests in individuals, in
particular as regards those types of
discrimination arising directly from
legislative provisions or collective labor
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
private or public.
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Macarthys
Ltd v
Smith,
129/79
(UK)
 Mrs. Smith was employed from 1/3/76 by
Macarthy's as a warehouse manageress
at a weekly salary of 50 Pounds.
 Mrs. Smith complained of discrimination
in pay because her predecessor, a man,
who received a salary of 60 Pounds.
 The member states are obliged to
ensure and maintain the
application of the principle that
men and women should receive
equal pay for equal work.
 The principle that men and women
should receive equal pay for equal
work, enshrined in Article 119 of
the EEC Treaty, is not confined to
situations in which men and
women are contemporaneously
doing equal work for the same
employer.
 Companies under Article 141 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.
 The principle of equal pay enshrined in
Article 119 applies to the case where it is
established that, having regard to the
nature of her services, a woman has
received less pay than a man who was
employed prior to the woman’s period of
employment and who did equal work for
the employer.
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Jenkins v
Kingsgate
(Clothing
Productions)
Ltd,
96/80
(UK)
 The questions were raised in the course
of a dispute between a female
employee working part-time and her
employer, a manufacturer of women’s
clothing, against whom she claimed that
she was receiving an hourly rate of pay
lower than that paid to one of her male
colleagues employed full-time on the
same work.
 The purpose of Article 119 is to
ensure the application of the
principle of equal pay for men
and women for the same work.
 Consequently the fact that parttime work is paid at an hourly
rate lower than pay for full-time
work does not amount per se to
discrimination prohibited by
Article 119 provided that the
hourly rates are applied to
workers belonging to either
category without distinction
based on sex.
 Where the national court is able, using
the criteria of equal work and equal pay,
without the operation of community or
national measures, to establish that the
payment of lower hourly rates of
remuneration for part-time work that for
full-time work represents discrimination
based on difference of sex the
provisions of Article 119 of the treaty
apply directly to such a situation.
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Smith v
Avdel
Systems
Ltd, C408/92
(UK)
 The questions have arisen in
proceedings between Mrs.
Smith and four other women,
on the one hand, and Avdel
Systems Limited, on the other,
concerning the equalization of
retirement ages for men and
women.
 Article 119 of the Treaty precludes an
employer who adopts measures
necessary to comply with raising the
retirement age for women to that for men
in relation to periods of service completed
between 17/5/90, the date of that
judgment, and the date on which those
measures come into force. On the other
hand, as regards periods of service
 Until 30/6/91 the retirement age completed after the latter date, Article 119
was set at 65 years for men
does not prevent an employer from taking
and 60 years for women. With
that step. As regards periods of service
effect from 1/7/91, that age was prior to 17/5/90, Community law imposed
set uniformly at 65 years for
no obligation which would justify
both sexes.
retroactive reduction of the advantages
which women enjoyed.
 The Bedford Industrial Tribunal
has to deal with 78 applications  once discrimination has been found to
brought by women who,
exist, and an employer takes steps to
because their retirement age
achieve equality for the future by reducing
has been raised to that for men, the advantages of the favored class,
are now in a less favorable
achievement of equality cannot be made
financial situation than they had progressive on a basis that still maintains
come to expect under the old
discrimination, even if only temporarily.
rule.
 Article 119 of the Treaty precludes an
occupational scheme, relying on its own
difficulties or those of the undertaking
concerned, from retrospectively raising
the retirement age for women in relation to
periods of service completed between 17
May 1990 and the date of entry into force
of the measures by which equality is
achieved in the scheme in question.
 Application of the principle of equal
treatment between men and women in
relation to pay by employers must be
immediate and full. Achievement of
equality cannot be made progressive on a
basis that still maintains discrimination,
even if only temporarily.
 Article 141 does not preclude an employer
from raising the retirement age to that for
men in order to comply with the Barber
judgment. Article 141 does not preclude
measures which achieve equal treatment
by reducing the advantages of the person
previously favored. It merely requires that
men and women receive the same pay for
the same work without imposing any
specific level of pay. However, one
discrimination in pay has been found to
exist, so long as measures for bringing
about equal treatment have not been
adopted by the scheme, the only proper
way of complying with Article 141 is to
grant the persons in the disadvantaged
class the same advantages as those
enjoyed by the persons in the favored
class. In the present case, that meant that,
as regards the period between the date of
the Barber judgment and the date on
which the scheme adopted measures to
achieve equality, the pension rights of men
must be calculated on the basis of the
same retirement age as that of women.
 Where the retirement age for women is
raised to that of men in order to remove
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discrimination in relation to occupational
pension, Article 141 does not allow
transitional measures designed to limit the
adverse consequences for women as
regards benefits payable in respect of
future periods of service.
 Article 141 precludes an occupational
pension scheme, even where there are
objectively justifiable considerations
relating to the needs of the undertaking or
of the scheme concerned, from
retrospectively raising the retirement age
for women in relation to periods of service
between the date of the Barber judgment
and the date of entry into force of the
measures designed to achieve equal
treatment.
Allonby V.
Accrington &
Rossendale
College
C- 256/01
(England &
Wales)
 Ms Allonby was originally employed by the
College as a part-time lecturer in office
technology.
 The College employed 341 part-time
lecturers. It decided that in order to reduce
its overheads it would terminate or not
renew their contracts of employment, and
instead would retain their services as subcontractors. This was done in Ms Allonby's
case by terminating her employment with
effect from 29 August 1996 and offering
her re-engagement through ELS which
operated as an agency, holding a
database of available lecturers.
 Ms Allonby, and others like her who had to
register with ELS if they wanted to
continue to work as part-time lecturers,
thereby became self-employed. Their pay
became a proportion of the fee agreed
between ELS and the College. Their
income fell and they lost a series of
benefits linked to their employment,
ranging from sick pay to a career structure.
 Ms Allonby, supported by her union and,
on appeal, by the Equal Opportunities
Commission, brought proceedings against
the College for a redundancy payment and
for redress for unfair dismissal and indirect
sex discrimination by reason of the
dismissal.
 In April 1998 that tribunal decided that the
dismissal by the College was unfair but
attracted no redress, and that it constituted
indirect sex discrimination but was
justifiable.
 Woman whose contract of employment
with an undertaking has not been renewed
and who is immediately made available to
her previous employer through another
undertaking to provide the same services
is entitled to rely, vis-à-vis the intermediary
undertaking, on the principle of equal pay,
using as a basis for comparison the
remuneration received for equal work or
work of the same value by a man
employed by the woman's previous
employer.
 In order to show that the requirement of
being employed under a contract of
employment as a precondition for
membership of the TSS a female worker
may rely on statistics showing that, among
the teachers who are workers within the
meaning of Article 141(1) EC and fulfill all
the conditions for membership of the
pension scheme except that of being
employed under a contract of employment
as defined by national law, there is a much
higher percentage of women than of men.
 in the absence of any objective
justification, the requirement, imposed by
State legislation, of being employed under
a contract of employment as a precondition
for membership of a pension scheme for
teachers is not applicable where it is
shown that, among the teachers who are
workers within the meaning of Article
141(1) EC and fulfill all the other conditions
for membership, a much lower percentage
of women than of men is able to fulfill that
condition.
 Once a finding of a condition having a
disparate impact on women has been made,
what is required of the tribunal at a minimum
is a critical evaluation of whether the
employers' reasons demonstrate a real need;
is there was such a need, consideration of
the seriousness of the disparate impact on
women including the claimant; and an
evaluation of whether the former were
sufficient to outweigh the latter.
 The prohibition against discrimination against
contract workers applies both between one
contract worker and an employee, so long as
they are working for the same principle.
Nothing in the section says that it is limited to
the discrimination between male and female
contract workers supplied to a particular
employer. It would be remarkable if it
permitted an employer, by bringing the
female contract workers on subcontract to
work alongside a predominantly male
employed work- force, to give them inferior
conditions so long as they were all treated
equally badly or (if differently treated) were
all of the same sex and so unable to
complain.
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Brunnhofer v
Bank der
osterreichisch
en
Postparkasse
C- 381/99
(Austria)
 Ms. Brunnhofer, who was
employed by the Bank from
1/7/1993 to 31/7/1997, considers
that she has suffered
discrimination based on sex,
contrary to the principle of equal
pay, on the ground that she
received a monthly salary lower
than that paid to a male colleague
recruited by the Bank on 1/8/1994.
 The national court found that,
although their basic salary was
identical, the difference in salary
between the two employees arose
from the fact that Ms Brunnhofer's
male colleague received an
individual supplement the monthly
amount of which was higher than
the supplement which she
received under her contract with
the Bank.
 It was expected that after a period
of training she would be appointed
to a management post in that
department. As a result of
professional and personal
problems which arose before her
male colleague was appointed,
she did not, however, obtain such
an appointment, but was posted to
the legal service where, it seems,
her work was not considered
satisfactory either. She was
 In the circumstances, the national court
identified quite rightly an inequality between
the unequal amount of individual salary
supplement paid monthly to the plaintiff and
that paid to her male comparator.
 In principle, the burden of proving the
existence of sex discrimination in the matter
of pay lies with the worker who, believing
himself to be the victim of such
discrimination, brings legal proceedings
against his employer with a view to having
the discrimination removed.
 It is accordingly for the plaintiff to prove by
any form of allowable evidence that the pay
she receives from the Bank is less than that
of her chosen comparator, and that she does
the same work or work of equal value,
comparable to that performed by him, so that
prima facie she is the victim of discrimination
which can be explained only by the
difference in sex. The employer is not
therefore bound to show that the activities of
the two employees concerned are different.
 It need merely be stated that it follows from
the foregoing that the employer may validly
explain the difference in pay, in particular by
circumstances not taken into consideration
under the collective agreement applicable to
the employees concerned, in so far as they
constitute objectively justified reasons
unrelated to any discrimination based on sex
and in conformity with the principle of
proportionality.
 Where the unit of measurement is the same
 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 into account of a
number of factors such as the nature of the
activities actually entrusted to each of the
employees, the training requirements for
carrying them out and the working
conditions, those persons are in fact
performing the same or comparable work.
 The fact that the employees concerned are
classified in the same category under a
collective agreement is not in itself sufficient
for concluding that they perform the same
work or work of equal value. The general
indications provided in a collective
agreement are only one indication amongst
others, and must as a matter of evidence, be
corroborated by precise and concrete factors
based on the activities actually performed by
the employees concerned.
 The burden is normally on the employee to
establish that the conditions giving rise to a
presumption that there is unequal pay are
fulfilled by proving by evidence that the pay
she receives is less than that of her chosen
comparator and that she does the same
work or work of equal value, comparable of
that performed by him.
 In comparing the pay of men and women in
order to determine whether the principle of
equal pay is being complied with, genuine
transparency, permitting an effective review,
is assured only if each aspect of
remuneration is compared, rather than any
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dismissed on 31/7/1997
for two groups of workers carrying out the
same work at piece rates, the principle of
equal pay does not prohibit those workers
from receiving different pay if that is due to
different individual output.
 It is not possible to treat in the same way all
the factors directly concerning the person of
the employee and therefore, in particular, to
assimilate the professional training
necessary to perform the activity in question
to its concrete results.
 The employer cannot pay to a specific
employee remuneration lower than that paid
to a colleague of the other sex and later
justify that difference on the ground that the
latter's work is superior, or on the ground that
the quality of the former's work steadily
deteriorated after that employee's
recruitment, where it is established that the
employees concerned are actually
performing the same work or at any rate
work of equal value.
general overall assessment of all the
considerations paid to the workers.
 If the employee adduces 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, and it is then for
the employer to prove that there was no
breach of the principle of equal pay. To do
this the employer can deny that the
conditions for the application of the principle
were met, by establishing that the activities
actually performed by the two employees
were not in fact comparable. The employer
could also justify the difference in pay by
objective factors, by proving there was a
difference unrelated to sex to explain the
comparator’s higher pay.
Angestelltenb
etriebsrat der
Wiener
Gebietskranke
nkasse v
Wiener
Gebietskranke
nkasse
C- 309/97
(Austria)
 The Higher Regional Court, Vienna,
referred to the Court seven questions
on the interpretation of Article 119 of
the EC Treaty.
 Those questions were raised in
proceedings between the
Angestelltenbetriebsrat der Wiener
Gebietskrankenkasse (Staff
Committee, Vienna Area Health Fund,
hereinafter 'the Staff Committee‘) and
the Wiener Gebietskrankenkasse
(Vienna Area Health Fund, hereinafter
'the Health Fund‘) concerning the
salaries of graduate psychologists
employed as psychotherapists.
 In order to determine whether the work
being done by different persons is the
same, 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.
 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.
 Two groups of persons who have received
different professional training and who,
because of the different scope of the
qualifications resulting from that training,
on the basis of which they were recruited,
are called on to perform different tasks or
duties, cannot be regarded as being in a
comparable situation.
 Two groups of employees who have
different professional qualifications
cannot be regarded as employed on
“the same work” for the purpose of
Article 141, even where the same
activities are performed over a
considerable length of time, if the
different groups cannot be considered
to be in a comparable situation.
Professional training is not merely one
of the factors that might 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.
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Jamstalldhet
sombudsma
nnen v
Orebro Lans
Landsting
C-236/98
(Sweden)
 By decision of 2/7/1998, received at
the Court on 6/7/1998, the
Arbetsdomstolen (Labor Court) referred
five questions for a preliminary ruling
under Article 177 of the EC Treaty.
 Those questions were referred in
proceedings between the
Jämställdhetsombudsmannen (Equal
Opportunity Ombudsman, hereinafter
'the JämO‘) and the Örebro Läns
Landsting (Örebro County Council,
hereinafter 'the Landsting‘) concerning
the pay of two midwives, which is lower
than that received by a clinical
technician even though, according to
the JämO, those midwives perform
work of equal value.
 The midwives in the main proceedings,
Ms. Ellmén and Ms Wetterberg, and
the clinical technician, Mr. Persson, are
all employed by the Landsting at the
regional hospital of Örebro. Their pay
and working conditions are governed
by collective bargaining agreements, in
particular the Allmänna Bestämmelser
95 collective agreement.
 The inconvenient-hours supplement is
governed by a collective agreement
and is calculated in the same way for
all the workers concerned. The
supplement varies according to the
time of day and according to whether
the hours are worked on a Saturday or
 The concept of pay, within the meaning
of the second paragraph of Article 119
of the Treaty, covers any other
consideration, in cash or in kind,
present or future, provided that the
worker receives it, even indirectly, in
respect of his employment from his
employer.
 Genuine transparency, permitting
effective review, is assured only if the
principle of equal pay applies to each of
the elements of remuneration granted
to men or women.
 In this case, therefore, in order to
ensure greater transparency and
guarantee compliance with the
requirement of effectiveness underlying
Directive 75/117, the midwives' monthly
basic salary should be compared with
the like salary of clinical technicians.
 The national court must verify whether
the statistics available indicate that a
considerably higher percentage of
women than men work as midwives. If
so, there is indirect sex discrimination,
unless the measure in point is justified
by objective factors unrelated to any
discrimination based on sex.
 Where there is a prima facie case of
discrimination, it is for the employer to
show that there are objective reasons
for the difference in pay. Workers
would be deprived of the means of
 Where the work of two groups can be
regarded as of equal value, the national
court must verify whether there is a
substantially higher proportion of
women then men in the disadvantaged
group. If so, Article 141 requires the
employer to justify the difference by
showing that there are objective
reasons for the difference in pay which
are unrelated to any discrimination on
the grounds of sex.
 Differences in normal working time
relate to working conditions and
therefore fall under the equal
Treatment Directive rather than Article
141. the fact that the fixing of certain
working conditions may have pecuniary
consequences is not sufficient to bring
such conditions within the scope of
Article 141. However, any differences
that might exist in the hours worked by
two groups whose pay is being
compared may constitute objective
reasons unrelated to any
discrimination on grounds of sex such
as to justify a difference in pay.
 In comparing the pay of midwives and
a clinical technician for the purpose of
Article 141, the appropriate comparison
was between the basic monthly
salaries of the two groups. No account
was to be taken of a supplement paid
to the midwives for working
inconvenient hours. Genuine
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a bank holiday. Inconvenient-hours
remuneration is generally only
accorded for work between the hours of
7 p.m. and 6 a.m. in the week. The
midwives received the supplement on a
regular basis, unlike the clinical
technician, who did not work hours
entitling him to it.
securing compliance with the principle
of equal pay before national courts if
evidence establishing a prima facie
case of discrimination did not have the
effect of imposing on the employer the
onus of proving that the difference in
pay is not in fact discriminatory.
 the fixing of certain working conditions
may have pecuniary consequences is
not sufficient to bring such conditions
within the scope of Article 119, which is
based on the close connection which
exists between the nature of the
services provided and the amount of
remuneration.
transparency, permitting effective
judicial review, is assured only if the
principle of equal pay applies to each of
the elements of remuneration.
Handels-og
Kontorfunktion
aerenes
Forbund i
Danmark v
Dansk
Arbejdsgiverfo
rening (acting
for Danfoss)
109/88
(Denmark)
 The Employees' Union
had first brought Danfoss
A/S before the Industrial
Arbitration Board, basing
its case on the principle of
equal pay for the benefit of
two female employees,
one of whom worked in
the laboratory and the
other in the reception and
dispatch department.
 The Equal Pay Directive must
be interpreted as meaning that
where an undertaking applies a
system of pay which is totally
lacking in transparency, it is for
the employer to prove that his
practice in the matter of wages
is not discriminatory, if a female
worker establishes, in relation
to a relatively large number of
employees, that the average
pay for women is less than that
for men
 It is not be excluded that it may
work to the disadvantage of
women in so far as they have
had less opportunity than men
for training or have taken less
advantage of such opportunity
 The Equal Pay Directive must
be interpreted as meaning that
where it appears that the
application of criteria, such as
the employee' s mobility,
training or length of service, for
the award of pay supplements
systematically works to the
disadvantage of female
employees
 Pursuant to [Article 18 of the Equal Treatment Directive], Member
States, in accordance with their national circumstances and their
legal systems, must take the measures necessary in order to
guarantee the application of the principle of equal pay and to
ensure the effectiveness means to see to it that this principle is
observed. The concern for effectiveness which therefore underlies
the Directive must lead to an interpretation requiring adjustments to
national rules relating to the burden of proof in specific situations
where such adjustments are essential for the effective
implementation of the principle of equality.
 The EC [Equal Treatment Directive] must be interpreted as
meaning that when an undertaking applies a pay system which is
characterized by a total lack of 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 pay of female
workers is lower than that of male workers.
 EC Equal Pay legislation must be interpreted as meaning that the
quality of the work carried out by the worker may not be used as a
criterion for pay increments where its application shows itself to be
systematically unfavorable to women. Where an assessment of the
quality of work in systematic unfairness to female workers, that
could only be because the employer applied the criterion in an
abusive manner. It is inconceivable that the work carried out by
female workers would be of a generally lower quality.
 EC Equal Pay legislation must be interpreted as meaning that
where the worker’s vocational training is used as a criterion for pay
increments and this works systematically to the disadvantage of
female workers, the employer may justify the use of the criterion of
vocational training by demonstrating that such training is important
for the performance of specific duties entrusted to the worker.
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Specialarbej
derforbundet
i Danmark v
Dansk
Industri
(acting for
Royal
Copenhagen
)
C-400/93
(Denmark)
 In this case, four questions
on the interpretation of Article
119 of the EEC Treaty and
Council Directive 75/117/EEC
of 10 February 1975 were
raised, on the approximation
of the laws of the Member
States relating to the
application of the principle of
equal pay for men and
women.
 Those questions were raised
in proceedings between the
Specialarbejderforbundet i
Danmark (Union of Semiskilled Workers in Denmark,
hereinafter
"Specialarbejderforbundet")
and Dansk Industri
(Confederation of Danish
Industry), acting on behalf of
Royal Copenhagen A/S
(hereinafter "Royal
Copenhagen").
 The Specialarbejderforbundet
considered that Royal
Copenhagen was infringing
the requirement of equal pay
because the average hourly
piece-work pay of the group
of blue-pattern painters, all
but one of whom were
women, was less than that of
 The principle of equal pay set out in Article 119 of the
Treaty and Article 1 of the Directive 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, where 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 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.
 The fact that, within a wider group consisting
predominantly of women, a distinction is drawn
between two subgroups on the basis of differences in
training requirements and that subsequently, of those
two subgroups consisting predominantly of women,
the subgroup which in terms of training requirements
is closest to a group consisting predominantly of men
is not used for the purposes of comparing pay with
the group consisting predominantly of men may
constitute evidence that the groups to be compared
have been formed in such an arbitrary manner.
 A pay differential between two groups of workers
does not constitute discrimination contrary to Article
119 of the Treaty and to the Directive if it may be
explained by objectively justified factors unrelated to
 The mere finding that in a piecework 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, since that difference
may be due to differences in individual
output of the workers constituting the
two groups. However, in a piecework
pay system where individual pay
includes a variable element depending
on each worker’s output and it is not
possible to identify the factors which
determined the rates or units of
measurements used to calculate the
variable element in the pay, the burden
of proving that the differences found are
not due to sex discrimination may shift to
the employer in order to avoid depriving
the workers concerned of any effective
means of enforcing the principle of equal
pay.
 Where a comparison between workers
of different sexes for work to each equal
value is attributed involves the average
pay of two groups paid by the piece, the
national court must satisfy itself that the
two groups each encompass all the
workers who, taking account of factors
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the group of automaticmachine operators, all of
whom were men.
any discrimination on grounds of sex
 When ascertaining whether the principle of equal pay
has been observed, it is for the national court to
decide whether, in the light of circumstances such as,
first, the fact that the work done by one of the groups
of workers in question involves machinery and
requires in particular muscular strength whereas that
done by the other group is manual work requiring in
particular dexterity and, secondly, the fact that there
are differences between the work of the two groups
with regard to paid breaks, freedom to organize one'
s own work and work-related inconveniences, the two
types of work are of equal value or whether those
circumstances may be considered to be objective
factors unrelated to any discrimination on grounds of
sex which are such as to justify any pay differentials.
 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 but that the national
court may take that fact into account 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.
such as the nature of the work, the
training requirements and the working
conditions, can be considered to be in a
comparable situation. 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. The comparison must also
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 pr to
differences in the individual output of the
workers concerned.
 It is for the national court to ascertain
whether, in the light of the facts relating
to the nature of the work carried out and
the conditions in which it is carried out,
equal value may be attributed to it, or
whether those facts may be considered
to be objective factors unrelated to
discrimination on grounds of sex such as
to justify any pay differentials.
 The fact that the rate of pay have been
determined by collective bargaining or
by negotiations at local level may be
taken into account by the national court
as the 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.
Garland v
British Rail
Engineering
Ltd
12/81
 A dispute between an employee of the
British Rail Engineering Limited, a
subsidiary of the British Railways
Board, which is a body created by the
Transport Act 1962 charged with the
duty of managing the Railways in the
United Kingdom, and her employer
concerning discrimination alleged to
be suffered by female employees who
on retirement no longer continue to
enjoy travel facilities for their spouses
and dependent children although male
employees continue to do so.
 When male employees of the
respondent undertaking retire from
their employment on reaching
retirement age they continue to be
granted special travel facilities for
themselves, their wives and their
dependent children.
 Where a national court is able, using
the criteria of equal work and equal
pay, without the operation of
community or national measures, to
establish that the grant of special
transport facilities solely to retired
male employees represents
discrimination based on differences
of sex, the provisions of Article 119 of
the treaty apply directly to such a
situation.
 “Pay”, for the purpose of Article 141,
comprises any consideration, whether
in cash or in kind, whether immediate
or future, that the worker receives,
albeit indirectly, in respect of his
employment from his employer.
 Travel facilities accorded to
employees after retirement are “pay”
within the meaning of Article 141, so
that an employer who provided
special travel facilities for former male
employees to enjoy after their
retirement discriminated within the
meaning of Article 141 against former
female employees who did not receive
the same facilities.
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Barber v
Guardian
Royal
Exchange
Assurance
Group
C-262/88
(UK)
 A dispute between the late Douglas
Harvey Barber and his former
employer, the Guardian Royal
Exchange Assurance Group (
hereinafter referred to as "the
Guardian "), concerning Mr. Barber'
s right to an early retirement
pension on being made
compulsorily redundant
 The concept of pay, within the
meaning of the second paragraph
of Article 119, comprises any
other consideration, whether in
cash or in kind, whether
immediate or future, provided that
the worker receives it, albeit
indirectly, in respect of his
employment from his employer.
 Mr. Barber was a member of the
pension fund established by the
Guardian which applied a noncontributory scheme, that is to say
a scheme wholly financed by the
employer.
 The benefits paid by an employer
to a worker in connection with the
latter' s compulsory redundancy
fall within the scope of the second
paragraph of Article 119, whether
they are paid under a contract of
employment, by virtue of
legislative provisions or on a
voluntary basis.
 That scheme, which was a
"contracted-out" scheme, that is to
say it was approved under the
Social Security Pensions Act 1975,
involved the contractual waiver by
members of the earnings-related
part of the State pension scheme,
for which the scheme in question
was a substitute.
 Members of a scheme of that kind
paid to the State scheme only
reduced contributions
corresponding to the basic flat-rate
pension payable under the latter
scheme to all workers regardless of
 unlike the benefits awarded by
national statutory social security
schemes, a pension paid under a
contracted-out scheme
constitutes consideration paid by
the employer to the worker in
respect of his employment and
consequently falls within the
scope of Article 119 of the Treaty.
 it is contrary to Article 119 of the
Treaty for a man made
compulsorily redundant to be
entitled to claim only a deferred
 Although many advantages granted by an employer
also reflect considerations of social policy, the fact
that a benefit is in the nature of pay cannot be called
in question where the worker is entitled to receive it
from his employer by reason of the existence of the
employment relationship. Therefore, a redundancy
payment made by an employer cannot cease to
constitute a form of pay on the sole ground that,
rather than deriving from the contract of
employment, it is a statutory or ex gratia payment.
 Since Article 141 applies to discrimination arising
directly from legislative provisions, benefits provided
for by law may come within the concept of “pay”.
 A pension paid under a contracted- out private
occupational scheme constitutes consideration paid
by the employer to the worker in respect of his
employment and consequently falls within the scope
of the definition of “pay” in Article 141.
 It is contrary to Article 141 to impose an age
condition which differs according to sex in respect of
pensions paid under a contracted- out scheme, even
if the difference between the pensionable age for
men and that for women is based on the one
provided for by the national statutory scheme.
 It is contrary to Article 141 for a man made
compulsorily redundant to be entitled to claim only a
deferred pension payable at the normal pension
age, when a woman in the same position is entitled
to an immediate retirement pension as a result of
the application of an age condition that varies
according to sex in the same way as is provided for
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their earnings
 The Guardian Royal Exchange
Assurance Guide to Severance
Terms, which formed part of Mr.
Barber' s contract of employment,
provided that, in the event of
redundancy, members of the
pension fund were entitled to an
immediate pension subject to
having attained the age of 55 for
men or 50 for women.
 Mr. Barber was made redundant
with effect from 31 December 1980
when he was aged 52. He would
have been entitled to a retirement
pension as from the date of his
62nd birthday. It is undisputed that
a woman in the same position as
Mr. Barber would have received an
immediate retirement pension as
well as the statutory redundancy
payment and that the total value of
those benefits would have been
greater than the amount paid to Mr.
Barber
pension payable at the normal
pensionable age when a woman
in the same position is entitled to
an immediate retirement pension
as a result of the application of an
age condition that varies
according to sex in the same way
as is provided for by the national
statutory pension scheme. 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
 Article 119 of the Treaty may be
relied upon before the national
courts and it is for those courts to
safeguard the rights which that
provision confers on individuals,
in particular where a contractedout pension scheme does not pay
to a man on redundancy an
immediate pension such as would
be granted in a similar case to a
woman.
by the national statutory pension scheme.
 The direct effect of Article 141 may not be relied
upon in order to claim entitlement to a pension with
effect from a date prior to that of the judgment in this
case (17/5/90), except in the case of those who
have before that date initiated legal proceedings or
raised an equivalent claim under the applicable
national law.
 Benefits paid by an employer to a worker in
connection with the latter’s compulsory redundancy
fall within the scope of Article 141 of the EC Treaty,
whether they are paid under a contract of
employment, by virtue of legislative provisions or on
a voluntary basis.
 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.
Hill v Revenue
Commissioner
s
C-243/95
(Ireland)
 Ms Hill and Ms Stapleton were recruited
to the Irish Civil Service through open
competitions for the Grade of Clerical
Assistant and were assigned to the
office of the Revenue Commissioners.
Ms Hill was recruited in 7/81 and began
job-sharing in 5/88. Ms Stapleton was
recruited in a job-sharing capacity in
4/86. Ms Hill and Ms Stapleton were
employed in a job-sharing capacity for
two years. They worked exactly half the
time which a full-time employee would
have worked, on a one week on/one
week off basis. During their respective
job-sharing periods of employment,
each moved one point up the
incremental scale with each year of
service and was paid at the rate of 50%
of the salary for clerical assistants,
according to the point each had
reached on the scale.
 Ms Hill returned to full-time employment
in 6/90. At that time she had reached
the ninth point on the incremental jobsharing scale. Initially, on her return to
full-time work, she was assimilated to
the ninth point of the corresponding
scale, but was subsequently placed on
the eighth point, on the ground that two
years' job-sharing were equivalent to
one year's full-time service.
 Ms Stapleton secured a full-time post in
 It is apparent from the case-file that the
national system in question places workers
who convert from job-sharing to full-time work
at a disadvantage compared with those who
have worked on a full-time basis for the same
number of years in so far as, when
converting to full-time work, a job-sharing
worker is placed, on the full-time pay scale,
at a level below that which he or she
previously occupied on the pay scale
applicable to job-sharing staff and,
consequently, at a level lower than that of a
full-time worker employed for the same
period of time.
 It is apparent from the case-file that 99.2% of
clerical assistants who job-share are women,
as are 98% of all civil servants employed
under job-sharing contracts. In those
circumstances, a provision which, without
objective justification, adversely affects the
legal position of those workers coming within
the category of job-sharers has
discriminatory effects based on sex.
 It must be borne in mind that the Labor Court
found that Ms Hill and Ms Stapleton were
doing the same work as their colleagues who
were working on a full-time basis and were in
a situation comparable to theirs.
 Within the category of full-time workers, there
is unequal treatment, as regards pay, of
employees who previously job-shared, and
who regress in relation to the position which
 A system for classifying workers
converting from job-sharing to fulltime employment comes within the
concept of “pay” for the purposes
of Article 141, since it determines
the progression of pay due to
those workers.
 Rules which treat full- time
workers who previously jobshared at a disadvantage
compared with other full- time
workers by applying a criterion of
service calculated by length of
time actually worked in a post, and
therefore placing them at a level
lower than that which they
occupied on the pay scale
applicable to job sharing, must in
principle be treated as contrary to
Article 141, where 98% of those
employed under job sharing
contracts are women.
 An employer cannot justify
discrimination arising from a jobsharing scheme solely on the
ground that avoidance of such
discrimination would involve
increased costs.
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4/88. She had at that time reached the
third point on the incremental jobsharing scale. She continued to move
up the scale in 1989 and 1990 to the
fourth and fifth points respectively, but
was informed in 4/91 that there had
been a mistake in her classification,
with the result that she was unable to
progress to the sixth point. She was
informed that her two years' job-sharing
service should have been counted as
one year's full-time service.
they already occupied on the pay scale.
 To grant to workers who convert to full-time
employment the same point as that which
they had under their job-sharing contract
does not constitute discrimination in favor of
female workers.
 So far as the justification based on economic
grounds is concerned, it should be noted that
an employer cannot justify discrimination
arising from a job-sharing scheme solely on
the ground that avoidance of such
discrimination would involve increased costs.
 where a much higher percentage of female
workers than male workers are engaged in
job-sharing, job-sharers who convert to fulltime employment are given a point on the
pay scale applicable to full-time staff which is
lower than that which those workers
previously occupied on the pay scale
applicable to job-sharing staff due to the fact
that the employer has applied the criterion of
service calculated by the actual length of time
worked in a post, unless such legislation can
be justified by objective criteria unrelated to
any discrimination on grounds of sex.
Lewen v
Denda
 Mrs. Lewen has been employed
since 1/9/90 by Mr. Denda.
C-333/97
 Mrs. Lewen was on leave due to her
pregnancy for a few weeks, and then
took parenting leave on her request.
(Germany)
 Before Mrs. Lewen gave birth in
1996, she received a Christmas
bonus on1 December each year
equal to a month's salary.
 On that occasion, the employer
asked her to sign a declaration
stating that in the case of absence
she might be requested to return the
bonus, and that the bonus is subject
to the reservation that she will not
terminate her contract of
employment before 1/7 of the
coming year or give the employer
any grounds to terminate her
employment without notice.
 A Christmas bonus of the kind at issue in the
main proceedings even if paid on a voluntary
basis and even if paid mainly or exclusively
as an incentive for future work or loyalty to
the undertaking or both, constitutes pay
within the meaning of Article 119 of the
Treaty.
 The prohibition of discrimination between
male and female workers not only applies to
action on the part of public authorities, but
also extends to all collective agreements
designed to regulate employment
relationships and to contracts between
individuals.
 In those circumstances, an employer's
refusal to award a bonus, even one reduced
proportionally, to workers on parenting leave
who worked during the year in which the
bonus was granted, on the sole ground that
their contract of employment is in suspense
when the bonus is granted, places them at a
disadvantage as compared with those whose
contract is not in suspense at the time of the
award and who in fact receive the bonus by
way of pay for work performed in the course
of that year. Such a refusal therefore
constitutes discrimination within the meaning
of Article 119 of the Treaty since female
workers are likely, as noted in paragraph 35
of this judgment, to be on parenting leave
when the bonus is awarded far more often
than male workers.
 A Christmas bonus constitutes “pay”
within the meaning of Article 141, even if it
is paid voluntarily by the employer as an
exceptional allowance.
 Article 141 of the EC Treaty precludes an
employer from entirely excluding women
on parental leave from the benefit of a
Christmas bonus without taking account of
the work done in the year in which the
bonus is paid or of periods of maternity
leave during which they were prohibited
from working, where that bonus is
awarded retroactively as pay for work
performed in the course of the year. If the
Christmas bonus is retroactive pay for
work performed, refusal to award a bonus,
even one reduced proportionately, to
workers on parental leave who worked
during the year in which the bonus was
granted, places them at a disadvantage
as compared with those whose contract in
not suspended at the time of the award.
Such a refusal constitutes discrimination
within the meaning of Article 141, since
female workers are far more likely to be
on parental leave when the bonus is
awarded than male workers.
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Kowalska v
Freie und
Hansestadt
Hamburg
C-33/89
(Germany)
 Mrs. Kowalska's employer refused to
pay her the severance grant under
that provision on the ground that she
had worked part time.
 The concept of pay, within the meaning
of the second paragraph of Article 119
of the EEC Treaty, comprises any other
consideration, whether in cash or kind,
whether immediate or future, provided
that the worker receives it, albeit
indirectly, from his employer in respect
of his employment.
 Compensation granted to a worker on
termination of the employment
relationship is a form of deferred pay to
which the worker is entitled by reason of
his employment but which is paid to him
on termination of the employment
relationship with a view to enabling him
to adjust to the new circumstances
arising from such termination.
 Article 119 of the EEC Treaty is to be
interpreted as precluding the application
of a clause in a collective wage
agreement applying to the national
public service under which employers
may exclude part-time employees from
the payment of a severance grant on
termination of their employment when in
fact a considerably lower percentage of
men than of women work part time,
unless the employer shows that the
exclusion is based on objectively
justified factors unrelated to any
discrimination on grounds of sex
 Article 141 is sufficiently precise to be
relied upon by an individual before a
national court in order to have any
national provision, including a collective
agreement, contrary to Article 141 set
aside.
 Article 141 precludes the application of a
provision of a collective agreement under
which part- time workers are excluded
from a benefit where a considerably
smaller percentage of men than of women
work part- time, unless the employer
shows that the provision is justified by
objective factors unrelated to any
discrimination on grounds of sex. It is for
the national court to determine whether
and to what extent a provision of a
collective agreement which in practice
affects more women than men is justified
on objective grounds unrelated to any
discrimination based on sex.
 Where there is indirect discrimination in a
provision of a collective agreement, the
members of the group which is
disadvantaged because of that
discrimination must be treated in the same
way and have the same system applied to
them as the other workers, in proportion to
their hours of work.
 http://eur-
lex.europa.eu/No
tice.do?val=165
548:cs&lang=en
&list=165548:cs
,&pos=1&page=
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#texte
Nimz v Freie
und
Hansestadt
Hamburg
 Mrs. Nimz was employed for
less than three-quarters of
normal working time, her
employer refused to classify her
in the next higher salary grade.
C-184/89
 In view of the fact that
employees who work for at
least three-quarters of normal
working time are entitled
automatically, on completion of
six years' service, to be
reclassified in the next higher
salary grade, Mrs. Nimz
believed that she was the victim
of unlawful indirect
discrimination.
(Germany)
 Article 119 of the EEC Treaty has to be interpreted
as precluding a collective agreement, entered into
within the national public service, from providing for
the period of service of employees working for at
least three-quarters of normal working time to be
taken fully 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 such normal working
time 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
 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 bargaining or any
other procedure, and to apply to members of
the group disadvantaged by that
discrimination the same arrangements as
are applied to other employees,
arrangements which, failing the correct
application of Article 119 of the EEC Treaty
in national law, remain the only valid system
of reference.
 Where there is indirect
discrimination in a provision of a
collective agreement, the national
court is required to disapply that
provision, without requesting or
awaiting its prior removal by
collective negotiation or any other
procedure. It would be incompatible
with the nature of Community law
for a judge to refuse to do all that is
necessary, at the time when
Community law is applied, to set
aside any provisions of a collective
agreement which might prevent
Community standards from attaining
their full affect.
 http://eur-
lex.europa.eu/No
tice.do?val=176
645:cs&lang=en
&list=176645:cs
,&pos=1&page=
1&nbl=1&pgs=1
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Stadt
Lengerich v
Helmig,
C-399/02



Rinner-Kuhn  Proceedings between Mrs.
Rinner-Kuehn and her
v FWW
employer, FWW SpezialSpezialGebaeudereinigung GmbH,
Gebauderein an office-cleaning
igung
undertaking, on the ground
GmbH,
that it had refused to continue
to pay wages to Mrs. Rinner171/88
(Germany)
Kuehn during her absence for
reasons of illness
 The German Law on the
continued payment of wages
of 27/7/69 provides that an
employer must continue to
pay wages for a period of up
to six weeks to any employee
who, after the
commencement of his
employment and through no
fault of his own, is incapable
of working.
 On the basis of that provision
and with reference to the fact
that Mrs. Rinner-Kuehn
normally worked ten hours a
week, her employer refused
to pay her for a period of
eight hours in which she was
absent owing to illness.
 Under the German legislative
provision in question only those
employees whose contract of
employment provides for a normal
period of work of more than 10 hours
a week or 45 hours a month are
entitled to the continued payment of
wages by their employer in the event
of illness.
 In percentage terms considerably less
women than men work the minimum
number of weekly or monthly hours
required to entitle an employee to the
continued payment of wages in the
event of inability to work due to
illness.
Article 119 of the EEC Treaty must be
interpreted as precluding national
legislation which permits employers to
exclude employees whose normal
working hours do not exceed 10 hours a
week or 45 hours a month from the
continued payment of wages in the
event of illness, if that measure affects
a far greater number of women than
men, unless the Member State shows
that the legislation concerned is justified
by objective factors unrelated to any
discrimination on grounds of sex.
 A legislative provision which results in practice in
discrimination between male and female workers is, in
principle, to be regarded as contrary to the objective
pursued by Article 141. it would only be otherwise if the
different treatment between the two categories of workers
was justified by objective factors unrelated to any
discrimination on the grounds of sex.
 The mere fact that a legislative provision affects a
considerably greater number of female that male workers
cannot be regarded as an infringement of Article 141 if a
Member State can establish before the national court that
the means selected correspond to an objective necessary
for its social policy and are appropriate and necessary to
the attainment of that objective.
 The continued payment of wages to a worker in the event
of illness falls within the definition of “pay” within the
meaning of Article 141.
 Article 141 of the EC Treaty precludes national legislation
which permits employers to exclude employees whose
normal working hours do not exceed 10 hours a week or
45 hours a month from the continued payment of wages in
the event of illness, where that measure affects a
considerable greater number of women than men, unless
the Member States shows that that legislation is justified
by objective factors unrelated to any discrimination on
grounds of sex.
 A submission that workers who work less than 10 hours a
week or 45 hours a month are not integrated in and
connected with the undertaking in a way comparable to
that of other workers only represented generalized
statements concerning categories of workers and could
not be regarded as objective criteria unrelated to any
discrimination on grounds of sex.
 http://eur-
lex.europa.eu/No
tice.do?val=153
563:cs&lang=en
&list=153563:cs
,&pos=1&page=
1&nbl=1&pgs=1
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88~&checktexte
=checkbox&visu
=#texte
HK (acting for
Hoj Pedersen) v
Faellesforening
en for
Danmarks
Brugsforeninger
(acting for
Kvickly Skive)
C-66/96
(Denmark)
 Ms Høj Pedersen, Ms
Andresen, Ms Pedersen and
Ms Sørensen are all covered
by the Danish Law on nonmanual workers. In all their
cases, pregnancy followed an
abnormal course prior to the
three months preceding the
expected date of confinement.
 The applicants in the main
proceedings brought
proceedings before the Sø- og
Handelsret and, on the basis
of the Community law rules on
equal treatment for men and
women, challenged the
interpretation of Paragraph 5
of the Law on non-manual
workers as meaning that
women who are unfit for work
for a reason connected with
the pregnancy before the
three-month period preceding
their confinement are not
entitled to full pay.
 In this case, it is clear from the case-file that all workers
are in principle entitled, under the legislation at issue in
the main proceedings, to continue to be paid in full in
the event of incapacity for work.
 Thus, the fact that a woman is deprived, before the
beginning of her maternity leave, of her full pay when
her incapacity for work is the result of a pathological
condition connected with the pregnancy must be
regarded as treatment based essentially on the
pregnancy and thus as discriminatory.
 This discrimination cannot be justified by the aim of
sharing the risks and economic costs connected with
pregnancy between the pregnant worker, the employer
and society as a whole. That goal cannot be regarded
as an objective factor unrelated to any discrimination
based on sex within the meaning of the case-law of the
Court.
 t is contrary to Article 119 of the Treaty and Directive
75/117 for national legislation to provide that a pregnant
woman who, before the beginning of her maternity
leave, is unfit for work by reason of a pathological
condition connected with her pregnancy, as attested by
a medical certificate, is not entitled to receive full pay
from her employer but benefits paid by a local authority,
when in the event of incapacity for work on grounds of
illness, as attested by a medical certificate, a worker is
in principle entitled to receive full pay from his or her
employer.
 It is contrary to Directives 76/207 and 92/85 for national
legislation to provide that an employer may send home
a woman who is pregnant, although not unfit for work,
without paying her salary in full when he considers that
he cannot provide work for her.
 It is contrary to Article 141 and
the [Equal Treatment Directive]
to deprive a woman of her full
pay when she is unfit for work
before the beginning of her
maternity leave as a result of
pregnancy- related conditions,
when a worker is in principle
entitled to receive full pay in
the event of incapacity for work
on grounds of illness.
 http://curia.europa.eu/juri
sp/cgibin/form.pl?lang=en&ne
wform=newform&Submi
t=Submit&alljur=alljur&j
urcdj=jurcdj&jurtpi=jurtp
i&jurtfp=jurtfp&alldocre
c=alldocrec&docj=docj&
docor=docor&docop=doc
op&docav=docav&docso
m=docsom&docinf=doci
nf&alldocnorec=alldocno
rec&docnoj=docnoj&doc
noor=docnoor&radtypeor
d=on&typeord=ALL&do
cnodecision=docnodecisi
on&allcommjo=allcommj
o&affint=affint&affclose
=affclose&numaff=66/96
&ddatefs=&mdatefs=&y
datefs=&ddatefe=&mdat
efe=&ydatefe=&nomusu
el=&domaine=&mots=&
resmax=100
North
Western
Health
Board v
McKenna
C-191/03
(Ireland)
 This reference has been submitted in the
course of a dispute between the North
Western Health Board (‘the Board’) and Ms
McKenna, its employee, concerning the
amount of pay which she received during an
absence on grounds of a pregnancy-related
illness and the offsetting of that absence
against the maximum total number of days of
paid sick leave to which a worker is entitled
over a specified period.
 Ms. McKenna is employed by the Board within
the public sector in Ireland. In January 2000
she discovered that she was pregnant. For
almost the entire duration of her pregnancy
she was on sick leave pursuant to medical
advice by reason of a pathological condition
linked to her pregnancy.
 Under the Board’s sick-leave scheme, its staff
members are entitled to 365 days of paid sick
leave over any period of four years
 This scheme does not distinguish between
pregnancy-related illnesses and other forms of
illness.
 During her maternity leave, Ms McKenna
received her full pay in accordance with the
regulations applied to the Health Boards by
the Department of Health and Children.
 On the expiry of her maternity leave, Ms
McKenna was still unfit for work on medical
grounds. Her salary was once again reduced
to half pay under the terms of the sick-leave
scheme.
 A sick-leave scheme which treats identically
female workers suffering from a pregnancyrelated illness and other workers suffering
from an illness that is unrelated to pregnancy
comes within the scope of Article 141 EC and
Directive 75/117.
 As Community law stands at present, no
general provision or principle thereof requires
that women should continue to receive full
pay during maternity leave, provided that the
amount of remuneration payable is not so low
as to undermine the Community-law objective
of protecting female workers, in particular
before giving birth.
Community law does not require the
maintenance of full pay for a female worker
who is absent during her pregnancy by reason
of an illness related to that pregnancy.
 A sick leave scheme which treats female workers
suffering from a pregnancy- related illness in the
same way as other workers suffering from illness
that is unrelated to pregnancy is “pay” within the
scope of Article 141 EC.
 A rule of a sick leave scheme which provides for a
reduction in pay where the absence exceeds a
certain duration as regards both female workers
absent prior to maternity leave by reason of an
illness related to their pregnancy and male workers
absent by reason of any other illness does not
constitute discrimination on grounds of sex contrary
to Article 141 and the [Equal Treatment Directive],
so long as the amount of payment made is not so
low as to undermine the objective of protecting
pregnant workers.
 It is not contrary to Article 141 and the Equal
Treatment Directive] for a sick leave scheme to
treat all illnesses in an identical manner for the
purpose of determining the maximum total number
of days of paid sick leave to which a worker is
entitled during a given period, and not to take any
account of the special nature of pregnancy- related
illness. However, the offsetting of absences during
pregnancy on grounds of a pregnancy- related
illness against a maximum total number of days of
paid sick leave to which a worker is entitled over a
specified period cannot have the affect that, during
the absence affected by that offsetting after the
maternity leave, the female worker receives pay
that is below the minimum amount to which she
was entitled over the course of the illness which
arose during her pregnancy. Special provisions
must be implemented in order to prevent such an
effect.
 http://eur-
lex.europa.
eu/Notice.
do?val=40
8304:cs&la
ng=en&list
=408304:c
s,&pos=1
&page=1&
nbl=1&pgs
=10&hwor
ds=191/03
~&checkte
xte=checkb
ox&visu=#
texte
Gillespie v
Northern
Health and
Social
Services
Board
C-342/93
(UK)
 A dispute between the
17 plaintiffs in the main
proceedings and their
employers, various
Northern Ireland Health
Services, concerning
the amount of benefit
which they received
during their maternity
leave.
 In November 1988,
negotiations within the
health services resulted
in pay increases
backdated to 1/4/88.
However, the plaintiffs
in the main
proceedings were
unable to receive that
increase because of
the method of
calculating the benefit
payable during
maternity leave.
 According to Article 1 of Directive 75/117, the principle
that men and women should receive equal pay for equal
work, as laid down in Article 119 of the Treaty and set out
in detail in the directive, is designed to eliminate, for the
same work or for work to which equal value is attributed,
all discrimination on grounds of sex with regard to all
aspects and conditions of remuneration.
 The amount payable could not, however, be so low as to
undermine the purpose of maternity leave, namely the
protection of women before and after giving birth. In order
to assess the adequacy of the amount payable from that
point of view, the national court must take account, not
only of the length of maternity leave, but also of the other
forms of social protection afforded by national law in the
case of justified absence from work.
 The principle of equal pay laid down in Article 119 of the
Treaty and set out in detail in Directive 75/117 neither
requires that women should continue to receive full pay
during maternity leave, nor lays down specific criteria for
determining the amount of benefit payable to them during
that period, provided that the amount is not set so low as to
jeopardize the purpose of maternity leave.
 The Equal Treatment Directive does not apply to
pay. Since the benefit paid during maternity
leave constitutes pay and falls within the scope
of Article 141 and the Equal Pay Directive, it
cannot be covered by the Equal Treatment
Directive as well.
 The principle of equal pay does not require that
women should continue to receive full pay during
maternity leave. Women taking maternity leave
are in a special protection, but which is not
comparable with that of a man or a woman
actually at work. Although the benefit paid by an
employer to a woman on maternity leave
constitutes pay within the meaning of Article 141
and the [Equal Treatment Directive]
discrimination involves the application of different
rules to comparable situations or the application
of the same rule to different situations.
Therefore, neither Article 141 nor the Directive
requires that women should continue to receive
pay during maternity leave.
 A woman on maternity leave must receive a pay
rise awarded before of during maternity leave.
 It is for national legislature to set the amount of
maternity pay, provided the amount is not so low
as to undermine the purpose of maternity leave,
namely the protection of women before and after
giving birth. In order to assess the adequacy of
the amount payable, the national court must take
account of other norms of social protection
afforded by national law in the case of justified
absence from work, as well as the length of
maternity leave.
 http://eur-
lex.europa.e
u/Notice.do?
val=212089:
cs&lang=en
&list=21208
9:cs,&pos=1
&page=1&n
bl=1&pgs=1
0&hwords=3
42/93~&che
cktexte=chec
kbox&visu=
#texte
 Mrs. Alabaster was an employee
Alabaster v
Woolwich plc of the Woolwich in the United
Kingdom from 7/12/87 to 23/8/96.
C-147/02
(UK)
 She commenced maternity leave
on 8/1/96, her expected week of
confinement being 11/2/96.
 On 21/1/97 Mrs. Alabaster brought
a complaint against the Woolwich
in the Employment Tribunal,
arguing that the failure to reflect
the salary increase in the
calculation of the statutory
maternity pay she received
constituted discrimination against
her on grounds of sex, contrary to
Article 119 of the Treaty.
 Article 119 of the Treaty must be interpreted as
requiring that, in so far as the pay received by the
worker during her maternity leave is determined, at
least in part, on the basis of the pay she earned
before her maternity leave began, any pay rise
awarded between the beginning of the period
covered by the reference pay and the end of the
maternity leave must be included in the elements of
pay taken into account in calculating the amount of
such pay. This requirement is not limited to cases
where the pay rise is back-dated to the period
covered by the reference pay.
absent any Community legislation in this sphere, it is
for the competent national authorities to determine
how, in compliance with all the provisions of
Community law, and in particular Directive 92/85,
any pay rise awarded before or during maternity
leave must be included in the elements of pay used
to calculate the pay due to a worker during maternity
leave.
 The principle of non- discrimination
requires that a woman who still has a
contract of employment or
employment relationship during
maternity leave must, like any other
worker, benefit from any pay rise
which is awarded between the
beginning of the reference period and
the end of maternity leave. To deny
such an increase to a woman on
maternity leave would discriminate
against her since, had she not been
pregnant, she would have received the
pay rise. Therefore, a woman who
receives a pay increase before the
start of her maternity leave is entitled,
in accordance with Article 141 of the
EC Treaty and the judgment in
Gillespie v Northern Health and Social
Services Board, to have the increase
taken into consideration in the
calculation of the earnings- related
element of her statutory maternity pay,
even though the pay rise was not
back- dates to the relevant reference
period for calculating her entitlement
under the Statutory Maternity Pay
(General) Regulations.
 http://curia.europa.e
u/jurisp/cgibin/form.pl?lang=en
&newform=newfor
m&Submit=Submit
&alljur=alljur&jurc
dj=jurcdj&jurtpi=jur
tpi&jurtfp=jurtfp&a
lldocrec=alldocrec&
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ocor&docop=docop
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csom=docsom&doci
nf=docinf&alldocno
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or=docnoor&radtyp
eord=on&typeord=
ALL&docnodecisio
n=docnodecision&a
llcommjo=allcommj
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maff=147/02&ddate
fs=&mdatefs=&ydat
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100
Arbeiterwohlf  A case concerning the
interpretation of Article 119 of the
ahrt der
EEC Treaty and of Council
Stadt Berlin
Directive 75/117/EEC of 10
v Botel,
February 1975 on the
approximation of the laws of the
C-360/90
(Germany)
Member States relating to the
application of the principle of
equal pay for men and women.
 That question has been raised in
proceedings concerning
compensation which Monika
Boetel, a part-time home help, is
claiming from her employer, the
Arbeiterwohlfahrt der Stadt Berlin
e.V., an association providing
welfare services in the Land of
Berlin, for attending training
courses
 The average weekly hours
worked by Mrs. Boetel are 29.25.
Since 1985 she has chaired a
staff council of one of her
employer's branches. In 1989 she
attended six training courses
covering, in particular,
employment law and industrial
relations law, knowledge of which
is necessary for working on a
staff council.
 Mrs. Boetel's employer paid her,
up to the limit of her individual
 Where compensation for participation in training
courses is concerned, the application of legislative
provisions such as those at issue in the main
proceedings in principle entails indirect
discrimination against female workers in relation to
male workers in the matter of pay, contrary to Article
119 of the Treaty and Directive 75/117.
 The argument that compensation for participation in
training courses granted under national legislation is
calculated solely on the basis of working hours not
worked does not alter the fact that staff council
members who work on a part-time basis receive
less compensation than their full-time colleagues
when in fact both categories of workers receive
without distinction the same number of hours of
training in order to be able effectively to look after
the interests of employees for the sake of good
working relations and for the general good of the
undertaking.
 Article 119 of the Treaty and Council Directive
75/117/EEC preclude national legislation applicable
to a much greater number of women than men from
limiting to their individual working hours the
compensation, in the form of paid leave or overtime
pay, which staff council members employed on a
part-time basis are to receive from their employer for
attending training courses which impart the
knowledge necessary for working on staff councils
and are held during the full-time working hours
applicable in the undertaking but which exceed their
own part-time working hours, when staff council
members employed on a full-time basis are
compensated for attendance of the same courses on
 Compensation in the form of paid leave or
overtime pay for participation in training
courses given by an employer to staff
committee members in accordance with
statutory provisions falls within the concept
of “pay” within the meaning of Article 141
and the EC Treaty and the Equal
Treatment Directive. Although such
compensation does not arise from the
contract of employment, it is nevertheless
paid by the employer by virtue of legislative
provisions and by reason of the existence
of an employment relationship with an
employee.
 Article 141 and the Equal Treatment
Directive preclude national legislation
which applies to a considerably greater
number of women than men limiting their
individual working hours the compensation
which members of staff committees
employed part- time should receive from
their employer in the form of paid leave or
overtime pay, in respect of their
participation in training courses providing
the knowledge and skills required for the
running of staff committees and which are
organized during the full- time working
hours applicable in the undertaking but
exceeding their own working hours as parttime employees, whereas the members of
staff committees are paid compensation up
to the limit of the full- time working hours. It
remains open to the Member State to
establish that the said legislation is justified
by objective factors unrelated to any
discrimination on grounds of sex.
 http://eur-
lex.europa.eu/Noti
ce.do?val=190127
:cs&lang=en&list
=190127:cs,&pos
=1&page=1&nbl=
1&pgs=10&hword
s=360/90~&check
texte=checkbox&v
isu=#texte
working week, for the hours she
had not worked owing to her
attendance of the courses. She
therefore received no
compensation for the hours of
training completed outside her
individual working hours.
the basis of full-time working hours.
Bestuur van
het Algemeen
Burgerlijk
Pensioenfond
s v Beune,
C-7/93
(Netherlands)
 A case raising seven questions
on the interpretation of Council
Directive 79/7/EEC of 19
December 1978 on the
progressive implementation of
the principle of equal treatment
for men and women in matters
of social security.
 Those questions were raised in
proceedings between G.A.
Beune and the Bestuur van het
Algemeen Burgerlijk
Pensioenfonds (hereinafter "the
ABP") concerning the
determination by the ABP of the
amount of the civil service
pension payable to Mr. Beune.
 Before 1 April 1985, a married
man was entitled under the
AOW to a general pension for a
married couple equal to 100%
of the minimum wage in force in
the Netherlands. Unmarried
persons of either sex were
entitled to a general pension
equal to 70% of the minimum
wage. A married woman had no
entitlement in her own right; she
became entitled only upon the
death of her husband.
 As from 1 April 1985, married
women became entitled in their
 A pension scheme set up by negotiation
between both sides of the industry concerned
and funded wholly by the employees and
employers in that industry, to the exclusion of
any financial contribution from the public purse,
falls within the scope of Article 119, even where
the public authorities, at the request of the
employers' and trade union organizations
concerned, declare the scheme compulsory for
the whole of the industry concerned. However,
the negotiation between the employers and
employees' representatives must, according to
that case-law, be such as results in a formal
agreement.
 A civil service pension scheme of the type at
issue in the main proceedings, which essentially
relates to the employment of the person
concerned, forms part of the pay received by
that person and comes within the scope of
Article 119.
 Article 119 of the Treaty had been infringed by
an undertaking which, without objective
justification unrelated to any discrimination on
grounds of sex, accorded different treatment to
men and women by excluding a category of
employees from a company pension scheme. It
should be noted that Bilka does not limit the
temporal effects of its interpretation of Article
119 of the Treaty.
 Where discrimination can be directly identified
as arising from the setting of different retirement
ages for men and women in the matter of
 In order to determine whether the
benefits provided by a pension scheme
are within the scope of Article 141, the
only possible decisive criterion is whether
the pension is paid to the worker by
reason of the employment relationship
between him and his former employer.
 A civil service pension scheme, which
essentially relates to the employment of
the person concerned, forms part of the
pay received by that person and comes
within the scope of Article 141. if the
pension paid by the public employer
concerns only a particular category of
workers, if it is directly related to the
period of service, and if its amount is
calculated by reference to the civil
servant’s last salary, it is entirely
comparable to the pension paid by a
private employer to its former employees.
 Article 141 precludes national legislation
which applies different rules for
calculating the occupational pension of
married men and married women.
Married men placed at a disadvantage by
the discrimination are entitled to be
treated in the same way and have the
same scheme applied to them as is
applied to married women.
 http://eur-
lex.europa.eu/
Notice.do?val=
204100:cs&lan
g=en&list=204
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own right to a general pension
under the AOW. As a result of
that amendment, the ABPW
scheme was changed.
 Mr. Beune submitted a
complaint to the ABP on the
ground that the ABPW afforded
more favourable conditions to
married women than to married
men as regards periods of
service before 1 January 1986.
He claimed that such
discrimination was incompatible
with Directive 79/7.
company pensions, there is no need to inquire
what effect that directive might have.
 the direct effect of Article 119 may be relied
upon in order to require equal treatment as
regards the payment of benefits under a
pension scheme such as the ABPW
corresponding to periods of employment falling
between 8 April 1976 and 17 May 1990 only by
civil servants or persons claiming under them
who have initiated legal proceedings or
introduced a claim before that date.
Worringham
v Lloyds
Bank Ltd,
129/69
 National courts have a duty to ensure
the protection of rights which Article 141
vests in individual.
 A contribution to a retirement benefits
scheme which is paid by an employer
in the name of male employees only,
by means of an addition to gross
salary, is discrimination in the form of
unequal pay men and women contrary
to Article 141, even though the salary
of men after reduction of the
contributions is comparable with that of
women who do not pay contributions,
since the amount of the gross salary
determined the amount of certain
benefits and social advantages to
which workers of both sexes are
entitled.
 Article 141 applies directly in Member
States, so as to confer enforceable
Community rights upon individuals, to all
forms of discrimination which may be
identified solely with the aid of the
criteria of equal work and equal pay
referred to by that Article, without
national or Community measures being
required to define them with greater
precision in order to permit of their
application. In such a situation the court
is in a position to establish all the facts
enabling it to decide whether a woman
receives less pay than a man engaged
in the same work, or work of equal
value.


Neath v
Hugh
Steeper Ltd,
C-152/91
(UK)
 Mr. Neath was employed by Hugh
 The aim of an occupational retirement
Steeper from 29 January 1973 to
pension scheme being to provide for the
29 June 1990, the date on which he future payment of periodic pensions, the
was made redundant. At that time
scheme' s financial resources, accrued
he was 54 years and 11 months
through funding, must be adjusted to the
old. During that period he was
pensions which, according to forecasts,
successively a member of two
will have to be paid.
private occupational pension
 The fact that women live on average
schemes run by his employer, the
longer than men, is one of the actuarial
entitlements acquired under the first
factors taken into account in determining
scheme having been transferred to
how the scheme in question is to be
the scheme of which he was a
funded. This is why the employer has to
member at the time when he was
pay higher contributions for his female
made redundant and which was a
employees than for his male employees.
"contracted-out" scheme
 In the context of a defined-benefit
 According to the rules of that
occupational pension scheme such as that
contracted-out scheme, male
in question in the main proceedings, the
employees may not claim a full
employer's commitment to his employees
company pension until they are 65
concerns the payment, at a given moment
years of age whilst female
in time, of a periodic pension for which the
employees may receive a full
determining criteria are already known at
pension at 60 years of age.
the time when the commitment is made
and which constitutes pay within the
meaning of Article 119.
 the use of actuarial factors differing
according to sex in funded defined-benefit
occupational pension schemes does not
fall within the scope of Article 119 of the
EEC Treaty.
 The use of actuarial factors differing
according to sex in founded defined- benefit
occupational pension scheme to take
account of the fact that women live on
average longer than men does not fall within
the scope of Article 141. Therefore,
inequality of employer’s contributions to the
founded defined- benefit pension schemes,
which is due to the use of actuarial factors
differing according to sex, is not prohibited
by Article 141. unlike periodic payment of
pensions, the funding arrangement chosen
to secure the adequacy of the funds
necessary to cover the cost of the pensions
promised is outside the concept of “pay” in
Article 141 as it not a consequence of the
employer’s commitment to pay employee
defined- benefits or to grant them specific
advantages and therefore does not come
within the corresponding expectations of the
employees as to the benefits which will be
paid by the employer o the advantages with
which they will be provided.
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Coloroll
Pension
Trustees Ltd
v Russell,
C-200/91
(UK)
 Coloroll Pension
Trustees Limited holds
and manages as trustee
the assets of the
schemes created by the
various companies in
the Coloroll group for
their employees with the
specific aim of providing
them with pensions and
other benefits promised
by the employer.
 Since the right to payment of a survivor's
pension arises at the time of the death of the
employee affiliated to the scheme, the
survivor is the only person who can assert it.
If the survivor were to be denied this
possibility, this would deprive Article 119 of
all its effectiveness as far as survivors'
pensions are concerned.
 The direct effect of Article 119 of the Treaty
may be relied on by both employees and
their dependants against the trustees of an
occupational pension scheme who are
bound, in the exercise of their powers and
performance of their obligations as laid down
in the trust deed, to observe the principle of
equal treatment.
 Once the Court has found that discrimination
in relation to pay exists and so long as
measures for bringing about equal treatment
have not been adopted by the scheme, the
only proper way of complying with Article
119 is to grant to the persons in the
disadvantaged class the same advantages
as those enjoyed by the persons in the
favoured class.
 Community law imposed no obligation which
would justify retroactive reduction of the
advantages enjoyed by women.
 The national court is bound to ensure correct
implementation of Article 119, taking due
account of the respective liabilities of
employers and trustees under the rules of
 The principles laid down in the Barber judgment, and the
limitation of its effects in time, concern not only
contracted- out occupational schemes but also noncontracted- out occupational schemes.
 Article 141 may be relied upon by an employee's
dependants.
 Article 141 may be relied upon against the trustees of an
occupational pension scheme. Since the trustees are
required to pay benefits which are "pay" within the
meaning of Article141, they are bound, in so doing, to do
everything within the scope of their powers to ensure
compliance with the principle of equal treatment.
 Employers and trustees cannot rely on the rules of their
pension scheme, or those contained in the trust deed, in
order to evade their obligation under Article 141 to ensure
equal treatment in the matter of pay. In so far as the rules
of national law prohibit them from acting beyond the scope
of their powers or in disregard of the provisions of the trust
deed, employers and trustees are bound to use all the
means available under domestic law to ensure
compliance with the principle of equal treatment, such as
recourse to the national courts to amend the provisions of
the pension scheme or of the trust deed.
 Transfer benefits and capital- sum benefits, whose value
depends on the funding arrangements chosen, do not
constitute "pay". Consequently, Article 141 does not cover
an inequality where a reduced pension is paid when the
employer opts for early retirement or in the amount of a
reversionary pension payable to a dependant in return for
the surrender of part of the annual pension.
 Article 141 does not cover additional benefits stemming
from additional voluntary contributions by employees,
where the pension scheme does no more than provide the
membership with the necessary arrangement for
management.
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domestic law.
 The use of actuarial factors varying
according to sex in funded defined-benefit
occupational pension schemes does not fall
within the scope of Article 119 of the Treaty.
Consequently, inequalities in the amounts of
capital benefits or substitute benefits whose
value can be determined only on the basis of
the arrangements chosen for funding the
scheme are likewise not struck at by Article
119.
 The principle of equal treatment laid down in
Article 119 applies to all pension benefits
paid by occupational schemes, without any
need to distinguish according to the kind of
contributions to which those benefits are
attributed, namely employers' contributions
or employees' contributions.
 Article 119 of the Treaty is not applicable to
schemes which have at all times had
members of only one sex.
 Where a benefit is not linked to the actual
length of service, such a lump- sum payment
in the event of the employee's death during
employment, the limitation of the effects in
time of the Barber judgment applies only
where the operative event occurred before
17/5/90. After that date, such benefits must
be granted in accordance with the principle
of equal treatment without distinguishing
between periods of service prior to and
subsequent to the Barber judgment.
 The national court is bound to ensure correct
implementation of Article 141 and, in order to do so, may
make use of all means available to it under domestic law,
such as by ordering the employer to pay sums into the
scheme, ordering that any sum payable by virtue of Article
141 must be paid out of surplus funds or out of the
scheme’s assets. Any problems arising because of the
funds held by the trustee are insufficient or the employer
cannot provide sufficient funds to equalize benefits must
be resolved on the basis of national law in accordance
with the principle of equal pay.
 The rights accruing to a worker from Article 141 cannot be
affected by the fact that he changes his job and has to join
a new pension scheme, with his acquired pension rights
being transferred to the new scheme. A worker entering
retirement is entitled to expect the scheme of which he is
then a member to pay him a pension calculated in
accordance with the principle of equal treatment, and to
increase benefits accordingly, even where the capital
transferred is inadequate due to the discriminatory
treatment under the first scheme. However, in accordance
with the Barber judgment, neither the scheme which
transferred rights nor the scheme which accepted them is
required to take the financial steps necessary to bring
about equality in relation to periods of service prior to
17/5/90.
BilkaKaufhaus
GmbH v
Weber von
Hartz,
170/84
(Germany)
 Mrs. Weber was employed
by Bilka as a sales
assistant from 1961 to
1976. After initially
working full time, she
chose to work part time
from 1/10/72 until her
employment came to an
end. Since she had not
worked full time for the
minimum period of 15
years, Bilka refused to pay
her an occupational
pension under its scheme.
 She argued inter alia that
the occupational pension
scheme was contrary to
the principle of equal pay
for men and women laid
down in Article 119 of the
EEC Treaty.
 Under the first paragraph of Article 119
the Member States must ensure the
application of the principle that men and
women should receive equal pay for
equal work. The second paragraph of
Article 119 defines 'Pay' 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
employment from his employer'.
 The scheme does not constitute a social
security scheme governed directly by
statute and thus outside the scope of
Article 119. Benefits paid to employees
under the scheme therefore constitute
consideration received by the worker
from the employer in respect of his
employment, as referred to in the
second paragraph of Article 119.
 Article 119 of the EEC Treaty is infringed
by a department store company which
excludes part-time employees from its
occupational pension scheme, where
that exclusion affects a far greater
number of women than men, unless the
undertaking shows that the exclusion is
based on objectively justified factors
unrelated to any discrimination on
grounds of sex.
 Under Article 119 a department store
company may justify the adoption of a
pay policy excluding part-time workers,
 Article 141 is restricted to pay discrimination
and therefore does not have the effect of
requiring an employer to organize an
occupational pension scheme in such a
manner as to take into account the particular
difficulties faced by persons with family
responsibilities in meeting the conditions for
entitlement to such a pension.
 The conditions for admission to an
occupational pension scheme, where the
benefits paid to employees constitute
consideration received by the worker from
the employer in respect of employment, fall
within the scope of the definition of "pay" in
Article 141 of the EC Treaty; such a scheme
does not constitute a social security scheme
governed directly by statute, which would be
outside the scope of Article 141.
 A policy which applies independently of a
worker's sex but in fact affects more women
than men will not constitute an infringement
of Article 141 if the employer shows that the
policy is objectively justified on economic
grounds. This requires a finding by the
national court that the measures chosen by
the employer correspond to a real need on
the part of the undertaking, are appropriate
with a view to achieving the objectives
pursued and are necessary to that end.
 An employer who excludes part-time workers
from an occupational pension scheme is in
breach is in breach of Article 141 if this
exclusion affects significantly more women
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irrespective of their sex, from its
occupational pension scheme on the
ground that it seeks to employ as few
part-time workers as possible, where it is
found that the means chosen for
achieving that objective correspond to a
real need on the part of the undertaking,
are appropriate with a view to achieving
the objective in question and are
necessary to that end.
 Article 119 does not have the effect of
requiring an employer to organize its
occupational pension scheme in such a
manner as to take into account the
particular difficulties faced by persons
with family responsibilities in meeting the
conditions for entitlement to such a
pension.
than men, unless the employer can show
that the exclusion is based on objectively
justified factors unrelated to any
discrimination on grounds of sex.
 An employer may justify the exclusion of
part-time workers, irrespective of their sex,
from an occupational pension scheme on the
ground that it seeks to employ as few parttime workers as possible, where it is found
that the means chosen for achieving that
objective correspond to a real need on the
part of the undertaking, are appropriate with
a view to achieving the objective in question
and are necessary to that end.
Vroege v NCIV
Instituut voor
Volkshuisvesting
BV,
 Since 1/5/75 Mrs. Vroege has
worked on a part-time basis
(25.9 hours a week) at NCIV
Instituut voor Volkshuisvesting
BV ("NCIV").
C-57/93
 On 1/1/91 new pension
scheme rules came into force,
providing that employees of
both sexes who have reached
25 years of age and work at
least 25% of normal working
hours can join the scheme.
(Netherlands)
 Since she had not reached the
age of 50 on 31/12/90 Mrs.
Vroege could not rely on that
transitional provision and
therefore could begin to
accrue pension rights only as
from 1/1/91.
 The right to join an occupational
pension scheme falls within the
scope of Article 119 of the Treaty
and is therefore covered by the
prohibition of discrimination laid
down by that article.
 The limitation of the effects in time
of the Barber judgment does not
apply to the right to join an
occupational pension scheme and
that, in this context, there is no
scope for any analogous limitation.
 The temporal limitation of the Barber judgment
concerns only those kinds of discrimination
which employers and occupational pension
schemes could reasonably have considered to
be permissible owing to the transitional
derogations provided by Community law in
respect of equal treatment with regard to the
determination of pensionable age.
 Article 141 of the EC Treaty covers the right to
join an occupational pension scheme, as well as
entitlement to benefits paid by an occupational
pension scheme which excludes part-time
workers will contravene Article 141 if the
exclusion affects a much greater number of
women than men, unless the employer shows
that it may be explained by objectively justified
factors unrelated to any discrimination on
grounds of sex.
 The Barber Protocol to Article 141, which
provides that benefits under occupational social
security schemes, shall not be considered as
remuneration if and in so far as they are
attributable to periods of employment prior to
17/5/90, does not affect the right to join an
occupational pension scheme. The Protocol is
applicable to benefits paid under an occupational
pension scheme, since that is all that is
mentioned in the Protocol. Neither the Protocol,
nor the Barber judgment, dealt with, or made any
provision for, the conditions of membership of
occupational schemes, which continue to be
governed by the Bilka judgment.
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Rummler v  Conditions of
Data-Druck remuneration in the
printing industry are
GmbH,
governed by the
237/85
(Germany)
'Framework wage-rate
agreement for industrial
employees of the
printing industry in the
territory of the Federal
Republic of Germany
including West Berlin of
6/7/84, which provides
for seven wage groups
corresponding to the
work carried out,
determined according to
the degree of
knowledge,
concentration, muscular
demand or effort and
responsibility.
 The plaintiff in the main
proceedings, who is
classified in wage group
III, considers that she
ought to be classified in
wage group IV since she
carries out work falling
under that wage group.
 Council Directive 75/117 of 10/2/75 on the approximation of the
laws of the Member States relating to the application of the
principle of equal pay for men and women does not prohibit the
use, in a job classification system for the purpose of determining
rates of pay, of the criterion of muscle demand or muscular effort
or that of the heaviness of the work if, in view of the nature of the
tasks involved, the work to be performed does require the use of
a certain degree of physical strength, so long as the system as a
whole, by taking into account other criteria, precludes any
discrimination on grounds of sex.
 Article 4 of the Equal Treatment Directive, which
provides that a job classification system "must be
based on the same criteria for both men and women
and so drawn up as to exclude any discrimination on
grounds of sex", requires that the 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 organized, as a whole, in
such a manner that it has the practical effect of
discrimination generally against workers.
 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.
 In determining rates of pay, it is 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, viewed objectively in fact tend to
favor male workers. A job classification system is no
discriminatory within the meaning of Article 4 of the
Equal Treatment Directive solely because one of the
criteria is based on characteristics more commonly
found among men than among women. However, if a
job classification system is not to be discriminatory
overall, it must be so designed, if the natures of the
work so permits, as to take into account other criteria
for which female employees may show particular
aptitude.
 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.
 In order for a job classification system not to be discriminatory as
a whole, it must, in so far as the nature of the tasks carried our in
the undertaking permits, take into account criteria for which
workers of each sex may show particular aptitude.
 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 Equal Treatment Directive.
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Enderby v
Frenchay
Health
Authority,
C-127/92
(UK)
 A proceeding brought by
Dr Pamela Enderby
against the Frenchay
Health Authority
(hereinafter "FHA") and
the Secretary of State
for Health concerning
the difference in pay
between two jobs within
the National Health
Service (hereinafter
"NHS").
 The appellant in the
main proceedings, who
is employed as a
speech therapist by the
FHA, considers that she
is a victim of sex
discrimination due to the
fact that at her level of
seniority within the NHS
(Chief III) members of
her profession, which is
overwhelmingly a
female profession, are
appreciably less well
paid than members of
comparable professions
in which, at an
equivalent professional
level, there are more
men than women.
 Where significant statistics disclose an appreciable
difference in pay between two jobs of equal value, one of
which is carried out almost exclusively by women and the
other predominantly by men, Article 119 requires the
employer to show that that difference is based on
objectively justified factors unrelated to any
discrimination on grounds of sex.
 The respective rates of pay of two jobs of equal value,
one carried out almost exclusively by women and the
other predominantly by men, were arrived at by collective
bargaining processes which, although carried out by the
same parties, are distinct, and, taken separately, have in
themselves no discriminatory effect, is not sufficient
objective justification for the difference in pay between
those two jobs.
 It is for the national court to determine, if necessary by
applying the principle of proportionality, whether and to
what extent the shortage of candidates for a job and the
need to attract them by higher pay constitutes an
objectively justified economic ground for the difference in
pay between the jobs in question.
 There is a prima facie case of sex discrimination where valid
statistics disclose an appreciable difference in pay between two
jobs of equal value, one of which is carried out almost exclusively
by women and other predominantly by men. It is for the national
court to assess whether the statistics appear to be significant in that
they cover enough individuals and do not illustrate purely fortuitous
or short- term phenomena.
 Where there is prima facie case of discrimination, Article 141 of the
EC Treaty requires the employer to show that the difference in pay
is based on objectively justified factors unrelated to any
discrimination on grounds of sex. Workers would be unable to
enforce the principle of equal pay before national courts if evidence
of a prima facie case did not shift to the employer the onus of
showing that the pay differential is not in fact discriminatory.
 The fact that the respective rates of pay of two jobs of equal value,
one carried out almost exclusively by women and the other
predominantly by men, were arrived at by collective bargaining
processes which, although carried out by the same parties, are
distinct, and, taken separately, have in themselves no
discriminatory effect, is not sufficient objective justification for the
difference in pay between those two jobs.
 The state of the employment market, which may lead an employer
to increase the pay of a particular job in order to attract candidates,
may constitute an objectively justified economic ground for a
difference in pay. If the national court is able to determine precisely
what proportion of the increase in pay is attributable to market
forces, it must necessarily accept the pay differential is objectively
justified to the extent of that proportion. If that is not the case, it is
for the national court to assess whether the role of the market
forces in determining the rate of pay was sufficiently significant to
provide objective justification foe part or all of the difference.
Therefore, it must determine, if necessary by applying the principle
of proportionality, whether and to what extent the shortage of
candidates for a job and the need to attract them by higher pay
constitutes an objectively justified economic ground for the
difference in pay between the jobs in question.
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Schonheit
v Stadt
Frankfurt
am Main,
C-4/02
(Germany)
 A case of the progressive
implementation of the principle of equal
treatment for men and women in matters
of social security (OJ 1979 L 6, p. 24), of
Council Directive 86/378/EEC of 24 July
1986 on the implementation of the
principle of equal treatment for men and
women in occupational social security
schemes.
 Ms. Schönheit, who was born on
12/7/39, began working for the City of
Frankfurt am Main on 1/4/96 as a social
worker, initially as a contractual
employee and then, from 1/1/84, as an
official.
 On 12/7/99, the City of Frankfurt am
Main awarded her a pension of 65.8% of
her final pensionable salary. Ms
Schönheit raised an objection to that
decision. The City of Frankfurt am Main
dismissed her objection.
 Such a pension is not a pension paid by a
statutory social security scheme and
consequently the scheme established by the
BeamtVG does not fall within the scope of
Directive 79/7.
 Provisions such as those at issue in the main
proceedings may result in discrimination
against women by comparison with men in
breach of the principle of equal pay for men
and women for equal work, unless the
provisions are justified by objective factors
unrelated to any discrimination on grounds of
sex.
 it is for the national court, which has sole
jurisdiction to assess the facts and interpret
the national legislation, to determine whether
and to what extent a legislative provision
which, though applying independently of the
sex of the worker, actually affects a
considerably higher percentage of women
than men is justified by objective factors
unrelated to any discrimination on grounds of
sex.
 The different treatment of men and women
may be justified, depending on the
circumstances, by reasons other than those
put forward when the measure introducing
the difference in treatment was introduced.
 A difference in treatment between men
and women may be justified,
depending on the circumstances, by
reasons other those put forward when
the measure introducing the differential
treatment was adopted. It is for the
Member States which has introduced
such a measure, or the party who
invokes it, to establish before the
national court that there are objective
reasons unrelated to any discrimination
on grounds of sex such as to justify the
measure concerned, and they are not
bound in that respect by the intention
expressed when the measures was
adopted.
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Cadman v
Health &
Safety
Executive,
C-17/05
(UK)
 Mrs. Cadman is employed by the HSE.
Since she has been working for that
body the pay system has been altered
several times. Following the
introduction in 1995 of a Long Term
Pay Agreement, annual pay increases
were set in accordance with the award
of points called ‘equity shares’ linked to
the employee’s performance. That
change had the effect of decreasing
the rate at which pay differentials
narrowed between longer-serving and
shorter-serving employees on the
same grade. Finally, in 2000, the
system was altered again to enable
employees lower down the pay bands
to be paid larger annual increases and,
therefore, to progress more quickly
through the pay band.
 In June 2001, Mrs. Cadman lodged an
application before the Employment
Tribunal based on the Equal Pay Act.
At the date of her claim, she had been
engaged as a band 2 inspector, a
managerial post, for nearly five years.
She took as comparators four male
colleagues who were also band 2
inspectors.
 Although they were in the same band
as Mrs. Cadman, those four persons
were paid substantially more than her.
 Article 141 EC is to be interpreted as
meaning that, where recourse to the
criterion of length of service as a
determinant of pay leads to disparities in
pay, in respect of equal work or work of
equal value, between the men and
women to be included in the comparison:
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 that regard;
where a job classification system based
on an evaluation of the work to be carried
out is used in determining pay, there is
no need to show that an individual
worker has acquired experience during
the relevant period which has enabled
him to perform his duties better.
 There is no rule of law that the
justification must have compulsory and
contemporaneously featured in the
decision- making processes of the
employer, and cannot be "after the
event" arguments.
 As reformulated by the Court of Appeal
in Barry v. Midland Bank plc, the test for
objective justification set out in the Bilka
Kaufhaus decision is whether the means
used are "reasonably necessary". The
difference between "necessary" and
"reasonably necessary" is a significant
one. The test does not require the
employer to establish that the measure
complained of was "necessary" in the
scene of being the only course open to
him.
 An employer does not have to establish
specifically that resource to length of
service as a determinant of pay is
appropriate as regards a particular job to
attain the legitimate objective of
rewarding experience acquired which
enables the worker to perform his duties
better, unless the worker provides
evidence capable of raising serious
doubts in that regard.
 Where the worker provides capable of
giving rise to serious doubts as to
whether resources to the criterion of
length of service is, in the circumstances,
appropriate to attain the objective of
 http://eurlex.europa.eu/Notice.
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rewarding experience that enables the
worker to perform his duties better, then
it is for the employer to justify in detail
resource to the criterion of length of
service by providing, as regards the job
in question, that length of service goes
hand in hand with experience and that
experience enables the worker to
perform his duties better.
 Where pay is based on a job evaluation
system, if the objective pursued by using
the criterion of length of service is to
recognize experience, there is no need
for the employer to show that an
individual worker has acquired
experience, there is no need for the
employer to show that an individual
worker has acquired experience during
the relevant period which has enabled
him to perform his duties better.
In all of the cases summarized above, The ECJ ruled that costs are not recoverable.
Conducted & Edited by: Arwa Rinawi, Adv.