C-243/95

HILL AND STAPLETON v REVENUE COMMISSIONERS AND DEPARTMENT OF FINANCE

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 20 February 1997 *

1. In this case, the Court is once more called 3. Both claimants exercised their right under upon to give a ruling on the compatibility the Irish rules governing public service to with Article 119 of the Treaty of a system of work in a job-sharing capacity. 1More spe­ remuneration applicable to civil servants. cifically, Ms Hill, who was recruited in July The point in issue here is whether the criteria 1981, began job-sharing in May 1988 when set by the Irish rules for calculating job- she was on the seventh point of the scale of sharing service for the purposes of pay when pay for Clerical Assistant posts; Ms Staple- the employee concerned exercises the right ton, for her part, was directly recruited to a to return to full-time employment, are con­ job-sharing post in April 1986. sistent with the principle of equal treatment for men and women laid down in the Com­ munity legal order.

Facts

4. As regards pay, under instructions con­ 6. The competent administrative authority tained in a circular of 27 February 1984 — the Department of Finance — addressed issued by the Department of Finance, the that question in a circular of 31 March 1987 scale of pay applicable to job-sharing staff is which stated that 'as each year's job-sharing a scale each point of which represents 50% service is reckonable as 6 months' full-time of the corresponding point on the scale of 3 service, an officer who has served for two pay appropriate to full-time staff. Employ­ years in a job-sharing capacity should be ment while job-sharing is therefore paid on a placed on the second point of the full-time strictly pro-rata basis. scale (equivalent to one year's full-time ser­ vice)' (emphasis added). Where officers had been job-sharing for more than two years, their position on the full-time scale was to be 4 adjusted on a strictly pro-rata basis.

I - 3742

HILL AND STAPLETON v REVENUE COMMISSIONERS AND DEPARTMENT OF FINANCE

the job-sharing scale); Ms Stapleton, on the 10. The Equality Officer, relying on the 1974 other hand, was placed when she secured Act and the Court's judgment in Nimz, full-time work — having completed two found in the claimants' favour. In his opin­ years' job-sharing service — on the third ion, equating two years' job-sharing service point of the pay scale and, since she worked to one year's full-time service for the pur­ satisfactorily throughout 1989 and 1990, poses of progression on the incremental scale moved up to the fifth grade of the 'full-time' constituted discrimination against them. scale.

8. It was only subsequently that the admin­ 11. Following the Recommendation of the istration realized its 'mistake' and undertook Equality Officer, the Revenue Commission­ the necessary adjustments. Ms Hill was ers and the Department of Finance ('the 'regressed' from the ninth to the eighth point appellants') appealed to the Labour Court. on the pay scale. For her part, Ms Stapleton The claimants, for their part, also appealed to was not permitted to progress to the sixth that court for an order requiring the admin­ point on the scale, even though from the istration to implement the Recommendation. point of view of the quality of her work, she satisfied the requirements for such advance­ ment.

12. The Labour Court found that a case of direct discrimination was not made out. However, on the grounds that the majority 9. Under section 7(1) of the Anti- of job-sharing staff are women and that the Discrimination (Pay) Act 1974, the claimants period of service spent job-sharing may give submitted a complaint to an Equality Officer the officer experience equivalent to that in which they argued that the rules govern­ 7 gained by a full-time worker, it has referred ing the recognition of pay increments the following questions to the Court in accrued while job-sharing were unlawful as order to ascertain whether indirect discrimi­ contrary to Article 119 of the Treaty and 5 nation may be made out against female civil Directive 75/117/EEC on equal pay. employees in this case.

Apart from the parties, the Commission has (a) Does a prima facie case of indirect dis­ also submitted written observations. The crimination arise where job-sharing parties, the United Kingdom Government workers who convert to full-time work and the Commission participated in the hear­ are given credit for incremental progres­ ing. sion on the scale of pay for full-time staff by reference to actual time worked such that, while the benefits awarded to them are fully prorated to those awarded to staff who have always worked full-time, they are placed at lower points on the The relevant provisions full-time scale than comparators who are in all respects similar to them except that they have worked continuously on a full-time basis? In other words, is the principle of equal pay, as defined in Directive 75/117/EEC, contravened if employees who convert from job- 13. The provisions quoted below are rel­ sharing to full-time work, regress on the evant to consideration of the case. incremental scale and hence on their sal­ ary scale, due to the application by the employer of the criterion of service cal­ culated by time worked in a job?

The second paragraph of Article 119 of the Treaty defines 'pay' as follows:

(b) If so, does the employer have to provide special justification for recourse to the 'For the purpose of this Article, "pay" means criterion of service, defined as actual the ordinary basic or minimum wage or sal­ time worked, in awarding incremental ary and any other consideration, whether in credit? cash or in kind, which the worker receives,

'The principle of equal pay for men and women outlined in Article 119 of the Treaty, 15. It seems to me that a few observations hereinafter called "principle of equal pay", will suffice on this point. The Labour Court means, for the same work or for work to was first constituted by the Industrial Rela­ which equal value is attributed, the elimina­ 8 tions Act 1946, which lays down detailed tion of all discrimination on grounds of sex rules concerning its powers and procedure. with regard to all aspects and conditions of Its members are appointed by the Minister remuneration.' for Trade and Industry on recommendations from trade union and employers' organiza­ 9 tions. Whilst its original jurisdiction was exclusively in the sphere of arbitration, the functions of the Labour Court have changed over time. The alteration introduced by the 10 Anti-Discrimination (Pay) Act 1974 is par­ Legal analysis ticularly significant for the purposes of this case. Section 8 of the Act provides that the Labour Court is to hear and determine appeals — as in this case — concerning Rec­ ommendations of the Equality Officer. In such cases there is provision on the one hand for a private or public hearing (section 8(1)(c)(i) and (ii)), and on the other hand for a possible appeal on a point of law to the 14. Before examining the substance of the High Court against the Labour Court's questions referred by the Labour Court, I shall start by tackling a matter which the Commission alone raised in its observations. May the Labour Court be regarded as a 8 — Acts of the Oireachtas, 1946, No 26, p. 1019, sections 10 to court or tribunal within the meaning of 25. 9 — The procedure for appointing the Chairman does not involve Article 177 of the Treaty? The Commission consultation with employers' and workers' representatives, considers that it may. The other parties did but is a matter for the Minister alone. See section 10(3) of the 1946 Act. not state any views in the written procedure. 10 — Acts of the Oireachtas, 1974, No 15, p. 211.

17. I would ask the Court to bear with me while I make a few preliminary observations regarding this dispute. The case before the Court resembles those considered in Cases 16. To my mind, the requirements which a C-2/95 and C-100/95 — on which I deliv­ 16 decision-making body must satisfy, accord­ ered an Opinion on 22 October 1996 — ing to the Court's case-law, in order to con­ and in the case of Nimz. Yet this is true only stitute a 'court or tribunal' within the mean­ in certain legal and factual respects. In other ing of Article 177 are fulfilled in this case: it respects the case now before the Court dif­ must be established by law and be indepen­ fers. dent, have a permanent existence, exercise binding jurisdiction, be bound by rules of adversary procedure and apply rules of 12 law. The Labour Court, which was estab­ lished and is governed by law, is a perma­ nent, independent body and also exercises 'binding jurisdiction' inasmuch as it has sole jurisdiction to hear and determine equal- 13 18. The points of similarity with Cases treatment disputes. It takes its decisions in C-1/95 and C-100/95 are as follows. In those accordance with a procedure laid down by proceedings it was alleged that the calcula­ statute, with the safeguard of an inter partes tion method used by the German Govern­ hearing, and is called upon to apply rules of ment in regard to advancement — in terms law. An appeal against its decisions can be of career in those cases as against in terms of brought before the High Court on a point of 14 pay scale in this case — gave rise to indirect law. Last, I would point out that the Court discrimination against part-time workers. held in Danfoss, a case much more open to Having said that, it should be noted that the doubt than this, that an industrial arbitration circumstances under consideration in Gerster and Kording fell within the ambit of Community rules different from those in 11 — See section 17 of the Industrial Relations Act 1946. It is to be noted that section 8(4) of the 1974 Act lays down the procedure to be followed where the employer fails to implement a decision of the Labour Court. In that case, there is a second stage before that court, at the end of which 15 — I would point out that in that case neither the establishment the employer may be ordered to take certain action. If the of the board nor the procedure to be observed was deter- employer fails to comply, fines may be imposed. mined in detail by statute; the arbitration board was in gen- eral composed on an ad hoc basis, so that doubts arose as to 12 — See, most recently, Joined Cases C-74/95 and C-129/95 its nature as a permanent body; finally, the legal rules which [1996] ECR 1-6609; Case C-393/92 Almelo [1994] ECR it had to apply were those of collective agreements. On this 1-1477, paragraph 21; Case C-24/92 Corbiau [1993] ECR point, see the Opinion of Advocate General Lenz in Dan- 1-1277; Case 109/88 Danfoss [1989] ECR 3199 and Case foss [1989] ECR 3209, at points 16 to 24. 338/85 Pardini [1988] ECR 2041. 16 — Opinion in Cases C-1/95 Gerster v Freistaat Bayern and 13 — See section 7(1) of the 1974 Act. C-100/95 Kording v Senator für Finanzen [1996] ECR 14 — Case 61/65 Vaassen (née Göbbels) [1966] ECR 261. I-5253.

time workers have to satisfy in order to acquire the right to pay increases are com­ patible with the principles of equal treat­ ment. Unlike the provision at issue in Nimz, however, the Irish provision under consider­ ation in this case evaluates work carried out over a reduced number of hours on the basis of strictly pro-rata parameters: there is a direct correlation between the work carried 18 out and progression on the scale. On top of this, there is — as the Commis­ sion observes — specific clarification afforded by the judgment in Nimz, which is directly relevant to the subject-matter of this case: 'the rules governing what is practically an automatic reclassification in a higher sal­ ary grade come in principle within the con­ cept of pay as defined in Article 119 of the 20. To my mind, this case falls within the 20 Treaty'. In the case now before the Court, scope of the Community rules on equal pay: movement from one salary grade to another Article 119 of the Treaty and the relevant is automatic, which accords with the test laid down in Nimz. The question arises precisely because employees who initially worked in a 17 — Council Directive 76/207/EEC of 9 February 1976 on the job-sharing capacity automatically suffer a implementation of the principle of equal treatment for men and women as regards access to employment, vocational reduction in hourly pay at the time when training and promotion, and working conditions (OJ 1976 L 39, p. 40). they convert their employment relationship 18 — I note that the provisions of Bundesangestelltentarifvertrag into a full-time arrangement. ('the BAT', the collective wage agreement scale (see foot- note 34 and Nimz, paragraph 3) for federal employees) which were at issue in Nimz provided that full account should be taken of the period of service of workers employed for at least three-quarters of normal working time, but that only one-half of such period of service 19 — Case 171/88 Rinner-Kühn [1989] ECR 2743; Case C-33/89 should be taken into account in the case of workers whose Kowahka [1990] ECR I-2591; and Case C-127/92 Enderby working hours were between one-half and three-quarters of [1993] ECR I-5535, paragraph 21. normal working time. 20 — Nimz, paragraph 10.

22 — From this point of view, the figures supplied during the It must, however, be pointed out that the proceedings speak for themselves. Of Clerical Assistants working in a job-sharing capacity, 99.2% are women; more majority of officers in the grade of Clerical generally, 98% of Irish Civil Servants who have chosen to job-share are women. The claimants' assertion, made both Assistant are women. What is more relevant in their observations (point 1.2) and at the hearing, that workers choose that scheme in order 'to combine work and family responsibilities', seems to be borne out by the expe- rience of the Civil and Public Service Union that 83% of job-sharers 'do so to combine family and work responsi- 21 — Case 96/80 Jenkins v Kingsgate [1981] ECR 911, paragraphs bilities. This invariably involves caring for children' (quoted 10 and 11. in point 2.9 of the claimants' observations).

I - 3748

HILL AND STAPLETON v REVENUE COMMISSIONERS AND DEPARTMENT OF FINANCE

principles of Community law. Furthermore, employees who have carried out quantita­ the particular character of job-sharing distin­ tively different work, those who have guishes it from part-time work: job-sharing, worked reduced hours will be unjustifiably they say, is the sharing of work and the advantaged over those who have worked related responsibilities between two employ­ full-time. ees. That difference in kind between job- sharing and part-time work provides justifi­ cation for taking account of job-sharing for the purposes of calculating length of service in accordance with the same rules as apply to full-time work.

23 — Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 Stadt Lengerich and Others v Helmig 24 — See, to this effect, Circular No 9/87 of the Department of and Others [1994] ECR I-5727. Finance.

I - 3749

OPINION OF MR LA PERGOLA — CASE C-243/95

I - 3750

HILL AND STAPLETON v REVENUE COMMISSIONERS AND DEPARTMENT OF FINANCE

then concerned the possibility of treating with the calculation of pay for employees employees assigned to the same work in a required to work according to different sys­ different manner for the purposes of calcu­ tems. In our case, the Court is called upon to lating pay. Giving part-time workers the ascertain whether or not persons working in right to overtime supplements as from the a job-sharing capacity have the right to pre- first hour worked over and above their serve their hourly rate of pay, once they have working hours would have led to the unac­ exercised their right to return to full-time ceptable result of paying full-time workers work. In essence, if the strictly pro-rata cri­ proportionately less than part-timers. The terion adopted in Helmig were to apply in Court held that there is unequal treatment the case in point, as the Irish and United wherever the overall pay of full-time Kingdom Governments propose, that would employees is higher than that of part-time signify, to all intents and purposes, calling in employees for the same number of hours question workers' hourly pay, thus making 30 worked on the basis of an employment rela­ some of their financial rights nugatory. For 29 tionship. That is the correct view, which my part, I do not believe that I can accept holds good, as the Commission notes, in this such a result. case as far as concerns the amount of pay due to the employee while job-sharing. As long as the persons concerned are employed in a job-sharing capacity, their pay is calcu­ lated on the basis of the work actually per­ formed, and in no other way.

worked reduced hours. To my mind, this 30. Extension of such different treatment, disparity in the hourly pay of a full-time still on account of the pro-rata criterion, to worker compared with a part-time worker is employees moving from job-sharing to full- directly contrary to the principle of equal time work results in a downward valuation treatment upon which the judgment in Hel- of the work they previously did when they mig is based. were employed part-time. To my mind, that cannot be squared with the judgment of the Court in Nimz. The important thing to con­ sider is the effect of such a valuation. Recourse to the criterion of hours worked during the period of part-time employment, as provided for by the Irish rules, introduces a retrospective disparity in the overall pay of workers performing the same duties in their employment both in terms of quality and quantity: workers are treated as belonging to different categories. Hence the conclusion that there is unequal treatment. It is apparent 29. Similar kinds of objections are encoun­ from the order for reference that the major­ tered by the Irish administration's argument ity of the employees concerned are women: that if full-time employees who had formerly the calculation criterion used by the Irish chosen to share jobs were to be treated in the Government does therefore constitute dis­ same way as those who have always worked crimination against them. 32

32. In essence, the Court is called upon to clarify what it held in its judgment in Dan- 33 foss. There, it laid down the principle that 'since length of experience goes hand in hand 34. That judicial opinion, the meaning of with experience and since experience gener­ which the national court now wishes the ally enables the employee to perform his Court to define, cannot be understood in duties better', the employer need not provide isolation from the facts set out above. Some special justification for recourse to the crite­ analysis is called for here. When the rion of length of service. employer takes an individual decision it is certainly lawful to take length of service into account as one factor in granting the employee a differential pay supplement. It may be that greater experience in the post enables the employee to work more effi­ ciently. What does, however, give rise to doubts is the use of a criterion which gener- alizes recourse to length of service, so as to 33. To my way of thinking, such a statement extend it indiscriminately even to cases in can only be considered in the light of the which it may be unjustified. facts of the case then before the Court. Let me briefly recall them. Under a clause in a collective employment agreement, Danfoss paid individual supplements to employees to reward flexibility, training and length of ser­ 34 vice. The system used by the employer to calculate those supplements was absolutely lacking in transparency, with the result that it was impossible for employees to find out the actual break-down of the supplements paid to them. Recognizing the need for This is an idea which I have already dis­ workers to know the detailed break-down of cussed in my Opinion in Gerster and Kord- their pay, the Court went on to assess the ing but to which I believe I must now return. The criterion of length of service must be supported by adequate justification where it is applied to a series of work relationships in 33 — Case 109/88 Danfoss, cited in footnote 12, paragraph 24. 34 — Under the collective agreement the employer was free to respect of which it is far from proved that grant supplements on the basis of certain individual charac­ length of service can be equated with compe­ teristics of the employee (see points 42 and 43 of Advocate General Lenz's Opinion in Danfoss [1989] ECR 3209). tence. Different treatment of part-time and

36. To round off this reasoning, and the bet­ 35 — On the other hand, I must indicate the lines along which some learned writers have interpreted the relationship ter to explain it, I shall add a few other between Danfoss and Nimz. In particular, G. More: Senior- ity pay for part-time workers, European Law Review 1991, observations which will help to distinguish has written: 'This (the rinding on that point in Nimz) this case from Nimz and to bear out the con­ appears to contradict the view expressed by the Court of Justice in Danfoss in 1989, when (...) it stated that "seniority clusion I have proposed. The job-sharing goes hand in hand with experience which generally places a worker in a better position to carry out his duties" and that scheme undoubtedly possesses specific fea­ "it was permissible for an employer to reward seniority tures differentiating it from part-time work. without having to establish the importance which it takes on for the performance of the specific duties to be entrusted Each of the workers who 'share' the job is to the worker". The latter statement, in particular, appears to be at variance with the view of the Court in Nimz that responsible for the work carried out by the there should be identifiable connection between rewarding seniority and an improved performance of the task in hand entire 'team' — if I may so describe it — This suggests that the Court's view of justifying seniority payments as expressed in Danfoss can no longer be regarded as valid. This is a welcome development and can, perhaps, be regarded as the major contribution of the Nimz judgment', p. 826. 36 — Danfoss, cited above, paragraph 24.

37. It follows that the criterion of length of service, defined as time actually worked, needs objective justification. The criterion will be justified where it is clear that full- In the light of both those aspects of job- time employment is the only solution to be sharing, the employment relationship can be adopted in order for the employee to obtain seen to have special characteristics different the requisite experience for his intended from those of full-time work. Employees duties. Otherwise, a different sort of justifi­ working in a job-sharing capacity are in a cation will have to be found that will in position halfway between part-time and full- any event satisfy the criteria laid down by time work. Their employment presents fea­ the Court in Bilka. It is clear from that tures of both categories: it resembles full- judgment, as far as concerns this dispute, time work from the point of view of the that the objective pursued by the administra­ responsibility for the work in its entirety and tion in regulating its employees' incremental part-time work because the hours to be steps must correspond to a real need on its worked are half the full-time hours. In my part. Moreover, the means chosen with a view, all of this must necessarily be taken view to achieving it must be appropriate and 40 into account in the assessment required as to necessary. the work performed and experience acquired by those who have worked as job-sharers. That is one more reason for considering that 38 — On this point it would be apt to recall the words of Advo- in the circumstances of this case it is unjusti­ cate General Darmon in his Opinion in Nimz, cited above, where, when considering the United Kingdom's argument, fiable to have recourse to length of service he stated that: 'Certainly it could be considered necessary to take account of length of service not in years but in hours of work performed, as proposed by the United King- dom, but on condition that it is to facilitate progression to different duties, entailing new responsibilities and conse-

39. With regard to that question, the claim­ ants argue that there is no justification what­ soever which is both objective and necessary as required by the Court's case-law. For its part, the administration argues that the Irish system is objectively justifiable on an implied series of grounds which satisfy the 41. With regard to the first justification requirements set out in the case-law of the relied on — that it is standard practice in the 41 Court. Irish civil service to 'credit' only actual paid service — I fail to see how it can serve in the circumstances of the case. As the Court has held, generalizations about certain categories of workers are unacceptable unless they are supported by objective criteria and are unre­ 40. It must be stated that the Court has con­ lated to any discrimination on grounds of sistently held that 'it is for the national court 43 sex. The argument put forward by the Irish Government has already been refuted, 44 in substance, in the judgment in Nimz. 41 — As stated in the order for reference (point 21), the admin- There the Court rejected the proposition istration has put forward the following reasons to justify its rules: that classification of part-time workers in a (a) the rules are in keeping with the standard practice of the civil service whereby incremental progression is related to service and only actual paid service is credited; (b) this practice is valuable to the employer in that it gives incentives to improve the quality of work performed; 42 — Rinner-Kühn and Nimz, both cited above. See also the (c) to make an exception or job-sharing service would lead Opinion of Advocate General Darmon in Nimz, points 10 to arbitrary and inequitable situations; and 11; judgments in Case C-328/91 Thomas and Others (d) to make such an exception because the majority of job- [1993] ECR 1-1267; Case C-457/93 Lewark [1996] ECR sharers are women would amount to discrimination in I - 243, paragraph 32, and the Opinion in Gerster, cited favour of women; above, point 43. (e) the present practice ensures that the incremental cost of job-sharing staff is the same as that of full-time staff, thus 43 — Case 171/88 Rinner-Kühn, cited at footnote 19, paragraph making the cost of work done by job-sharers the same as 14. the cost of work done by full-time staff. 44 — See the Opinion of Mr Darmon in that case, point 14, quoted in footnote 38.

higher salary grade should depend solely on 43. What is to be said of the discriminatory the number of hours worked. That argument consequences which, according to the did not prevail in Nimz and it does not administration, would be produced by the deserve to be upheld in this case. adoption of an ad hoc solution for a group, such as that of job-sharers, the majority of whom are women? I have already explained that there is no discrimination in favour of women. On the contrary. Those who have worked, and continue to work, full-time — a group of which women do not form the majority — receive twice the pay. The disad­ vantaged group is the group, notable for the preponderance of women over men, of those who have job-shared and move on to full- time work. The disadvantage can only be removed by recognizing their right to the 42. To my mind, the second reason given by incremental steps which they have previ­ the administration is equally unconvincing. ously accrued while job-sharing, as I have It argues that the need to give staff sufficient already explained. incentives is objective justification. To main­ tain motivation and a sense of vocation in the long term, or to raise the morale of staff, is a valid and laudable aim. All the more so when, as the representative of the appellant administration observed at the hearing, the career of Clerical Assistants is long and needs, if I may so express it, to be 'invigo­ rated' by continuing stimuli. However, it seems to me that such an objective could be pursued even if the disparity in pay were abolished and workers converting from job- sharing to full-time work could claim the length of service they had acquired in their previous work experience. While it is of course for the national court to make a definitive determination with regard to that point, I for one cannot see how the equal 44. Nor, lastly, am I persuaded by the justi­ treatment as regards pay claimed by the fication concerning the administration's workers concerned can possibly conflict financial needs. That, under the present sys­ with the administration's declared purpose. tem, the incremental cost of job-sharers is Nor, therefore, do I understand how the equal to that of full-time employees does not requirement of need laid down in the case- strike me as a meritorious argument. It does law referred to can be regarded as satisfied in not prove that the means chosen is necessary order to justify the discriminatory measure in order to satisfy a real need on the authori­ adopted in this case. In any event, it is for ty's part, as required by the judgment in the authority concerned to supply actual Bilka. I cannot for my part discover any rea­ proof that there is a basis for the alleged jus­ sons why the economic needs which the tification. administration asserts cannot be appropri-

(3) It is for the national court to determine whether the practice of correlating pay increments with time actually worked is objectively justified.

I - 3758