C-96/80

JUDGMENT OF 31. 3. 1981 — CASE 96/80

Therefore a difference in pay between include cases where men and women full-time workers and part-time receive unequal pay for equal work workers does not amount to discrimi- carried out in the same establishment nation prohibited by Article 119 of or service, public or private. Where the Treaty unless it is in reality merely the national court is able, using the an indirect way of reducing the level criteria of equal work and equal pay, of pay of part-time workers on the without the operation of Community ground that that group of workers is or national measures, to establish that composed exclusively or predomi- the payment of lower hourly rates of nantly of women. remuneration for part-time work than for full-time work represents discrimi- nation based on difference of sex the 2. Article 119 of the Treaty applies provisions of Article 119 of the Treaty directly to all forms of discrimination apply directly to such a situation. which may be identified solely with the aid of criteria of equal work and 3. Article 1 of Council Directive equal pay referred to by the article 75/117/EEC which is principally in question, without national or designed to facilitate the practical Community measures being required application of the principle of equal to define them with greater precision pay outlined in Article 119 of the in order to permit of their application. Treaty in no way alters the content or The forms of discrimination which scope of that principle as defined in may be thus judicially identified the Treaty.

JENKINS v KINGSGATE

THE COURT

composed of: J. Mertens de Wilmars, President, P. Pescatore, Lord Mackenzie Stuart and T. Koopmans, Presidents of Chambers, A. O'Keeffe, G. Bosco, A. Touffait, O. Due and U. Everling, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Mrs Jenkins took the view that she was unfairly prejudiced by the fact that, although she was engaged to perform the 3. Mrs Jenkins appealed against that same work as that performed by one of decision to the Employment Appeal her male colleagues (Mr Bannan), Tribunal, which, by an order of 25 employed full-time, she drew an hourly February 1980, referred the following rate of pay lower than that drawn by her questions to the Court for a preliminary colleague; she therefore brought an ruling: action before an Industrial Tribunal. In support of her complaint she alleged that the difference in pay contravened the “1. Does the principle of equal pay, equality clause incorporated into her contained in Article 119 of the EEC contract and the provisions of Section 1 Treaty and Article 1 of the Council (2) (a) of the Equal Pay Act, according Directive of 10 February 1975, to which the principle of equal pay for require that pay for work at time men and women applies in every case rates shall be the same, irrespective: where: (a) of the number of hours worked each week; or “a woman is employed on ‘like work’ with a man in the same employment”. (b) of whether it is of commercial benefit to the employer to encourage the doing of the The employer acknowledged that Mrs maximum possible hours of work Jenkins had been engaged to perform and consequently to pay a higher like work with that of Mr Bannan. rate to workers doing 40 hours Nevertheless, the employer maintained per week than to workers doing that there was “a material difference, fewer than 40 hours per week? other than the difference of sex” between her case and his. 2. If the answer to Question 1 (a) or (b) is in the negative, what criteria The Industrial Tribunal rejected the should be used in determining complaint and held that working for a whether or not the principle of equal period representing 7 5 % of the full pay applies where there is a working hours (30 hours = 7 5 % of 40 difference in the time rates of pay hours) constituted a “material difference, related to the total number of hours other than the difference of sex”, worked each week? sufficient to justify, in Mrs Jenkins's case, an hourly rate of pay 10% lower than that of her male colleague, in 3. Would the answer to Question 1 (a) accordance with Section 1 (3) of the or (b) or 2 be different (and, if so, in Equal Pay Act, which reads: what respects) if it were shown that

The order making the reference was lodged at the Court Registry on 12 Mrs Jenkins observes that the issue raised March 1980. in this case is whether, and if so in what circumstances, the principle of equal pay contained in Article 119 of the Treaty and Article 1 of Council Directive In accordance with Article 20 of the 75/117/EEC applies to part-time Protocol on the Statute of the Court of workers in the European Community. Justice of the EEC, written observations were submitted by Mrs J. P. Jenkins, represented by A. Lester, Q C , and She submits that it might be helpful at J. Hand, Barrister, instructed by Messrs the outset to place this issue within its Mills, Curry and Gaskell, Solicitors, by wider context, recalling that by far the the Government of the United Kingdom, majority of part-time workers in the represented by R. D. Munrow, Treasury Community are women and that in the Solicitor's Department, by the United Kingdom the proportion of Government of the Kingdom of Belgium, women in part-time work is even greater represented by J. Dufour, Conseiller than in the other Member States. Adjoint, Ministry of Foreign Affairs, and by the Commission of the European Communities, represented by J. Forman, a member of its Legal Department, Section 1 (3) of the Equal Pay Act 1970 acting as Agent. provides that a variation between a woman's contract and that of a man is justifiable if the employer proves that it is due to a material difference (other than Upon hearing the report of the Judge- the difference of sex) between her case Rapporteur and the views of the and his. In certain cases before the Advocate General, the Court decided to Employment Appeal Tribunal, which the open the oral procedure without any Court of Appeal has not had occasion to preparatory inquiry. However, it consider, it has been held that a requested the Commission to give a difference in the number of hours written reply by 1 November 1980 to the worked does fall within the concept of a following question: "Do any of the material difference.

As against those decisions, Mrs Jenkins asserts that that aim would be frustrated maintains that they are, in any event, if the principle of equal pay were incompatible with the principle effectively confined to full-time workers. enunciated by the Court of Appeal in Such a conclusion would create Clay Cross (Quarry Services) Ltd v competitive disadvantages both for Fletcher [1979] ICR 1 according to which undertakings in countries which apply the number of hours worked per week the principle of equal pay equally to and the intentions of the employer are part-time workers and for those in States extrinsic circumstances of little relevance where the proportion of available part- as regards proof of the absence of time workers is lower. It would also discrimination based on sex. Mrs Jenkins discriminate against women, who are also refers to the principle enunciated by generally prevented by their family the Supreme Court of the United States obligations and circumstances from being in Griggs v Duke Power Co 401 US 424 able to work as many hours per week as (1971), according to which what must be men doing the same work. prohibited are not merely practices which are intended to discriminate, but equally those which are discriminatory in their effect, irrespective of the intentions of their authors. Such a restrictive interpretation of the principle of equal pay would not only have absurd consequences (for example, different hourly rates of pay for persons Having thus reviewed the current working 40 and 39 hours per week), but, legislation and case-law in the United what is more, would facilitate Kingdom touching on the present issue, widespread misapplication of the Mrs Jenkins proceeds to consider principle to the detriment of women, Questions 1, 2 and 3 which, in her who constitute the great majority of opinion, are closely linked and may part-time workers. conveniently be examined together. She observes that the answers to those questions are needed irrespective of the answer to Question 4 regarding the direct effect in Member States of the If an employer wished to encourage his principle of equal pay. That is because, employees to work longer hours, he as a matter of national law, if Section 1 should pay a suitable overtime rate and (3) of the Equal Pay Act is held by the courts and tribunals of the United not reduce the pay of those working Kingdom to be ambiguous in the part-time. circumstances of the present case the answers to the first three questions will be relevant for the purpose of resolving any such ambiguity: cf. Case 111/75 Mazzalai v Ferrovia del Renon [1976] Subparagraph (b) of the third paragraph ECR 657 at p. 665 (paragraphs 7 to ii). of Article 119, states that " . . . pay for work at time rates shall be the same for the same job". What decides whether the job is the same is the nature of the work performed by the workers concerned, She recalls, first, the double aim, and not the number of hours worked economic and social, of Article 119 and each week. The fact that it may be

advantageous for the employer to pay a As regards Question 3, Mrs Jenkins higher basic rate to those working 40 submits that the principle of equal pay is hours per week than to those working violated not only where an employer fewer hours is an extrinsic and irrelevant intends to discriminate against a woman consideration as regards the principle of on grounds of sex but also where the equal pay. Indeed, if that were not the effect of his policy on pay is to case, the employer would be able to pay discriminate against her on such women less than men for equal work, grounds. If a condition or requirement not on the ground that they were women which must be met in order to obtain but because they could be recruited for equal pay for equal work operates so as less pay than men and that this was to to exclude women and cannot be shown the employer's commercial benefit. to have a manifest relationship to the services involved, the application of such a condition or requirement must be considered to be contrary to the principle of equal pay. That is in application of the principle or "adverse impact" enunciated by the Supreme Court of the United States (in Griggs v Duke Power Co) and by the British Parliament in Section 1 (1) (b) of the Sex Discrimination Act. It is not contested by Mrs Jenkins that in certain situations the difference in hourly rates of pay between a female part-time worker and a male full-time worker may be objectively justified by the operation of factors which are unconnected with any discrimination on the grounds of sex. It might be the case, for example, that the male worker has superior skill or qualifications or longer service. That exception to the principle of equal pay must be strictly confined, however, to Finally, as to the question of the direct real and relevant differences which are effect of Article 119 and Article 1 of personal to the workers concerned, and Council Directive 75/117/EEC, it may cannot include the employer's motives be recalled that, as the Court held in its where they are not related to the decision of 8 April 1976 (Case 43/75 personal qualities of the particular Defrenne v Sabena), these provisions are workers. directly applicable to all forms of direct and overt discrimination which may be identified solely with the aid of the criteria of equal work and equal pay, including unequal pay for equal work carried out in the same establishment or service. The circumstances of this case clearly fall within the scope of the direct application of Article 119: it has been shown that Mrs Jenkins carried out like In Mrs Jenkins's opinion the reply to be work with the male worker with whom given to Question 1 should therefore be she compares herself and there is no in the affirmative, which makes it difficulty in establishing whether she unnecessary to consider Question 2. received lower pay.

In its judgment of 15 June 1978 (Case 149/77 Defrenne v Sabena) the Court implied, moreover, that on the expiration of the period allowed to Member States for complying with Council Directive If, contrary to Mrs Jenkins's submissions, 76/207/EEC on equal treatment, some the circumstances envisaged by Question provisions of that directive would have 3 are held to fall outside the scope of the direct effect. By analogy it must direct application of Article 119, it will therefore be conceded that Article 1 of be necessary to rely on Article 1 of Council Directive 75/117/EEC, which Council Directive 75/117/EEC now has requires the elimination of all discrimi- direct effect in the circumstances of this nation on grounds of sex "with regard to case. all aspects and conditions of remuner- ation". That definition of discrimination extends to any condition which is capable of creating "indirect discrimi- nation" ("adverse impact") in the sense already described. In such circumstances The Government of the United Kingdom the principle of equal pay outlined in observes, first, that the provisions of Article 119 of the Treaty and further Community law referred to it in the defined in the first paragraph of Article 1 request for a preliminary ruling are of the directive has direct effect in concerned solely with discrimination on Member States so as to confer on the grounds of sex. If follows that those individuals rights which the national provisions are not applicable if a courts are bound to protect. difference in pay is the consequence of factors unconnected with any discrimi- nation on grounds of sex. Whether the difference may be so explained in any particular case is a question of fact for the national court to decide. In per- forming that duty, the national court As to Council Directive 75/117/EEC may legitimately have regard to the itself, Mrs Jenkins observes that it lays considerations mentioned in Question 1

Furthermore, it considers that there is no criterion other than that of whether or According to the Government of the not the difference in treatment is a result United Kingdom these are questions of of discrimination based on sex which fact which the national court must be may be identified or implied from or able to decide without being fettered by read into the wording of Article 119 of a reply in the affirmative to Question 1 the Treaty or of Article 1 of Council (a) or (b). Directive 75/117/EEC.

Thus it is maintained by the Government As to Question 3, the Government of the of the United Kingdom that the principle United Kingdom states that it cannot of equal pay contained in Article 119 of discern the precise scope of it. It the Treaty and in Article 1 of Directive observes, however, that even if the 75/117/EEC is only applicable where circumstances described in that question the difference in pay between a male in fact obtained and were the result of employee and a female employee is the discrimination based on sex, that would result of discrimination based on sex; still constitute indirect and disguised that where it is the consequence of other discrimination, which falls outside the

JUDGMENT OF 31. 3. 1981 — CASE 96/80

The Government of the Kingdom of The Commission sets out, first, the Belgium explains that in Belgium the arguments which may be used in favour remuneration of part-time workers may of excluding equal pay in such a case, be based on collective employment namely: agreements or, as is more often the case, individual agreements. If the agreements are silent on the subject, part-time workers might nevertheless be given the (a) that it is not "the same job"; right to remuneration in proportion to that laid down for full-time workers, as has been accepted, moreover, in some (b) that it is in reality the same job, but decided cases and by the Conseil that the fewer hours worked entail National du Travail [National Labour additional charges (principally Board]. It should, however, be financial) for the employer which emphasized that a difference in pay for may be taken into consideration to part-time work as opposed to full-time give the female part-time employee a work does not constitute a breach of the lower time rate. principle of equal pay in so far as there is no discrimination between male and female workers. Next, it sets out the arguments which might be advanced in reply.

The Commission of the European Communities notes that the court which As to the view that the job is not the has made the reference has asked the same, the language versions other than Court of Justice to examine the questions English would seem to suggest that it is referred to it exclusively on the basis of a in fact the "post" (slags arbejde, Arbeits-

JENKINS v KINGSGATE

As to the extra cost, the position of the Commission has always been (and it Of course, that does not exclude the refers in that regard to its possibility that a difference between two recommendation of 20 July 1960, workers occupying the same post may be Bulletin of the European Communities, explained by the operation of factors 1960, Vol. 6/7, p. 46) that "factors which are unconnected with any discrim- affecting the cost or yield of female ination on grounds of sex. Whether that labour shall not be taken into is the case is a question of fact.

JUDGMENT OF 31. 3. 1981 — CASE 96/80

Decision

1 By an order dated 25 February 1980 which was received at the Court on 12 March 1980 the Employment Appeal Tribunal of the United Kingdom referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty several questions as to the interpretation of Article 119 of the EEC Treaty and Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (Official Journal L 45, p. 19).

2 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

JENKINS v KINGSGATE

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.

3 Mrs Jenkins took the view that such a difference in pay contravened the equality clause incorporated into her contract of employment by virtue of the Equal Pay Act 1970, Section 1 (2) (a) of which provides for equal pay for men and women in every case where "a woman is employed on like work with a man in the same employment".

8 On the basis of those facts the Employment Appeal Tribunal referred the following questions to the Court:

" 1 . Does the principle of equal pay, contained in Article 119 of the EEC Treaty and Article 1 of the Council Directive of 10 February 1975, require that pay for work at time rates shall be the same, irrespective : (a) of the number of hours worked each week; or (b) of whether it is of commercial benefit to the employer to encourage the doing of the maximum possible hours of work and consequently to pay a higher rate to workers doing 40 hours per week than to workers doing fewer than 40 hours per week?

2. If the answer to Question 1 (a) or (b) is in the negative, what criteria should be used in determining whether or not the principle of equal pay applies where there is a difference in the time rates of pay related to the total number of hours worked each week?

3. Would the answer to Question 1 (a) or (b) or 2 be different (and, if so, in what respects) if it were shown that a considerably smaller proportion of female workers than of male workers is able to perform the minimum number of hours each week required to qualify for the full hourly rate of pay?

4. Are the relevant provisions of Article 119 of the EEC Treaty or Article 1 of the said directive, as the case may be, directly applicable in Member States in the circumstances of the present case?"

JENKINS v KINGSGATE

13 By contrast, if it is established that a considerably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to be able to claim the full-time hourly rate of pay, the inequality in pay will be contrary to Article 119 of the Treaty where, regard

JUDGMENT OF 31. 3. 1981 — CASE 96/80

being had to the difficulties encountered by women in arranging to work that minimum number of hours per week, the pay policy of the undertaking in question cannot be explained by factors other than discrimination based on sex.

1 4 Where the hourly rate of pay differs according to whether the work is part- time or full-time it is for the national courts to decide in each individual case whether, regard being had to the facts of the case, its history and the employer's intention, a pay policy such as that which is at issue in the main proceedings although represented as a difference based on weekly working hours is or is not in reality discrimination based on the sex of the worker.

15 The reply to the first three questions must therefore be that a difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by Article 119 of the Treaty unless it is in reality merely an indirect way of reducing the level of pay of part-time workers on the ground that that group of workers is composed exclusively or pre- dominantly of women.

Fourth question

20 As may be seen from the first recital in the preamble the primary objective of the above-mentioned directive is to implement the principle that men and women should receive equal pay which is "contained in Article 119 of the Treaty". For that purpose the fourth recital states that "it is desirable to reinforce the basic laws by standards aimed at facilitating the practical application of the principle of equality".

21 The provisions of Article 1 of that directive are confined, in the first paragraph, to restating the principle of equal pay set out in Article 119 of the Treaty and specify, in the second paragraph, the conditions for applying that principle where a job classification system is used for determining pay.

22 It follows, therefore, that Article 1 of Council Directive 75/117/EEC which is principally designed to facilitate the practical application of the principle of equal pay outlined in Article 119 of the Treaty in no way alters the content or scope of that principle as defined in the Treaty.

Costs

The costs incurred by the Government of the Kingdom of Belgium, the Government of the United Kingdom of Great Britain and Northern Ireland

JUDGMENT OF 31. 3. 1981 — CASE 96/80

Mertens de Wilmars Pescatore Mackenzie Stuart Koopmans O'Keeffe

Bosco Touffait Due Everling

Delivered in open court in Luxembourg on 31 March 1981.

A. Van Houtte J. Mertens de Wilmars Registrar President