C-236/98

JÄMO

OPINION OF ADVOCATE GENERAL JACOBS delivered on 16 December 1999 *

1. In this case, the Arbetsdomstol (Labour nates against the midwives by paying them Court), Sweden, has referred the question during a certain period a lower basic essentially whether, in comparing the pay monthly salary than a clinical technician of a man and a woman doing work of equal although they perform work of equal value. value for the purposes of Article 119 of the EC Treaty (now, after amendment, Arti- cle 141 EC) and the Equal Pay Directive, 1 account should be taken of the fact that those required to work inconvenient hours receive a pay supplement and work fewer hours.

3. The basic monthly salary of the mid- wives is SEK 17 400 in one case and SEK 16 600 in the other, whereas the basic monthly salary of the technician is SEK 19 650. Both the midwives and the technician work at the Örebro regional hospital and are employed by the County Council. All midwives working at that The facts and the main proceedings hospital are female; approximately 90% of clinical technicians working there are male.

2. In the main proceedings, the Jämställd- hetsombudsman (the Equal Opportunities Ombudsman) seeks an order for damages against Örebro Läns Landsting (Örebro County Council) in favour of two mid- wives, Kristina Elimén and Kia Wetterberg, 4. The midwives in question generally arguing that the County Council discrimi- work on a three-shift system, there being three overlapping shifts in a 24-hour day, although it appears that they sometimes * Original language: English. work on different bases, namely a two-shift 1 — Council Directive 75/117/EEC of 10 February 1975 on the (day/evening) system, night work or day approximation of the laws of the Member States relating to work. During the relevant period the mid- the application of the principle of equal pay for men and women, OJ 1975 L 45, p. 19. wives worked for the most part under the

9. The technician works a normal full-time 7. The collective agreement covering the Monday to Friday working week of 40 midwives and the technician further pro- hours with no inconvenient hours. If, vides that employees working inconvenient however, his terms of employment required hours (on weekends, bank holidays, nights him to work a three-shift system, he would or the three-shift system) other than by way of overtime are entitled to a supplement for 4 — Article 32. 5 — Annex A. 2 — Allmänna Bestämmelser 95 (General Provisions 95). 6 — Article 13. 3 — Article 8. 7 — Presumably in the context of dismissal or redundancy.

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be eligible for the inconvenient-hours sup- issue whether there is a pay differential. In plement on the same basis as the midwives order to make that finding, it is clearly and his full-time hours would be only 34 essential for the Labour Court to determine hours and 20 minutes whereas his basic the remuneration to be compared. It monthly salary would remain the same. accordingly seeks guidance from the Court The collective agreement requires employ- on the following questions: ees in case of need to alter their working schedule, adjust their working time, work over and above normal working hours and be on call. 8

'1. Under Article 119 of the Treaty of Rome and Council Directive 75/117/ EEC on the approximation of the laws of the Member States relating to the application of the principle of equal 10. While accepting that the midwives pay for men and women, must a receive a lower basic monthly salary than supplement for inconvenient working the technician, the County Council argues hours be included in the basis for a pay that the inconvenient-hours supplement comparison in relation to a pay dis- and the value of the reduced working time crimination claim? What difference must be included in the basis for the pay does it make that the supplement for comparison and that on that basis there is inconvenient working hours varies no discrimination against the midwives. from month to month depending on the working schedule?

12. Those questions can be pared down to the question whether and if so how the inconvenient-hours supplement and the reduction in hours worked are to be taken into account in comparing the pay.

13. Written observations have been sub- mitted by the Ombudsman, the County 4. Must a reduction in working time, Council, the Commission and the Finnish representing the difference in standard Government, all of whom were represented working time for daytime work and at the hearing. work under a continuous three-shift regime, be taken into account when a pay comparison is made in relation to a pay discrimination claim, in accor- dance with Article 119 of the Treaty of Rome and Council Directive 75/117/ EEC on the approximation of the laws of the Member States relating to the application of the principle of equal The relevant Community law pay for men and women? If the answer is in the affirmative: what significance does it have that under the collective agreement the lower standard working time applying under a continuous 14. Article 119 of the EC Treaty imposes three-shift regime constitutes full-time the principle that men and women should working? If reduced working hours are receive equal pay for equal work. The to be given a particular value, is that second paragraph defines 'pay' as 'the value to be regarded as being com- ordinary basic or minimum wage or salary prised in the fixed monthly pay or as and any other consideration, whether in constituting special compensation cash or in kind, which the worker receives, which is to be included in the pay directly or indirectly, in respect of his comparison? employment from his employer'.

17. Although it will normally in my view be appropriate to answer those three issues in the order set out above, there may be cases in which for one reason or another it 'The principle of equal pay for men and is expedient to consider them in a different women outlined in Article 119 of the order. In such circumstances the national Treaty, hereinafter called "principle of court may wish to have guidance from the equal pay", means, for the same work or Court on, for example, the second or third for work to which equal value is attributed, issue before establishing the first. That was the elimination of all discrimination on the case in Enderby, 10 where the Court of grounds of sex with regard to all aspects Appeal of England and Wales referred three and conditions of remuneration.' questions essentially concerned with the third issue set out above, namely the scope for justification, on the explicit assumption for the purpose of the proceedings that the two jobs whose salaries were being com- pared were of equal value. The German Government contended in that case that the Court could not rule on those questions without first establishing that the jobs in consideration were equivalent. The Court stated that it was solely for the national court to determine in the light of the 16. A woman employee (to take the usual particular circumstances of each case both case) seeking to establish infringement of the need for a preliminary ruling in order the principle of equal pay for work to for it to be able to deliver judgment and the which equal value is attributed will have to relevance of the question which it submit- address two distinct issues and may have to ted to the court. Where, as in that case, the deal with a third. In the case, as here, of Court receives a request for interpretation alleged indirect discrimination these may of Community law which is not manifestly be expressed as follows. First, she must be unrelated to the reality or the subject- part of a group of predominantly female matter of the main proceedings, it must employees performing work of equal value reply to that request and is not required to to that performed by a group of predomi- nantly male employees. Secondly, the first group must receive lower remuneration 9 — See Case 170/84 Bilka v Weber von Hartz [1986] ECR than the comparator group. If both those 1607, paragraph 36 of the judgment; Case C-127/92 Enderby v Frenchay Health Authority [1993] ECR I-5535, elements are shown by the employee, a paragraph 19; and see now Council Directive 97/80/EC of prima facie case of discrimination arises. 15 December 1997 on the burden of proof in cases of discrimination based on sex, OJ 1998 L 14, p. 6. Thirdly, however, the employer may dis- 10 — Cited in note 9.

consider the validity of a hypothesis which wives and the clinical technician perform it is for the referring court to verify work of equal value for the purpose of the subsequently if that should prove to be principle of equal pay; the County Council necessary. 11 is clearly of the view that the work performed by midwives on the one hand and clinical technicians on the other is not of equal value. Although the Finnish Gov- ernment and the Commission also express doubts as to the equal value of the work, they both accept that the national court is entitled to refer questions on the issue of equal pay on the assumption of equal 18. Advocate General Lenz noted that the value. Since, as indicated above, it is clear reservations of the German Government from the order for reference (and indeed regarding the assumption that the jobs were implicit in the questions) that equal value is of equal value were probably due to the assumed by the national court for the fact that a major part of trie burden of purposes of the reference for a preliminary making out a case and the burden of proof ruling, and since it is clear from the Court's incumbent on a plaintiff alleging pay judgment in Enderby that that is an accep- discrimination related to the work being table approach, I do not propose to deal the same or of equal value. However, the with the issue of equal value. Advocate General explained that the fact that the Court of Appeal, like the lower courts hearing the case, had assumed the equal value of the jobs to be compared was a result of the possibilities afforded by the procedural rules in the legal system of the Member State concerned. Examination whether two jobs were of equal value could sometimes entail an extensive and costly study. Under national procedural law the hearing of evidence could be postponed pending the consideration of the points of law. 12 20. The assumption made for the purpose of this case that the work of the two groups in this case is of 'equal value' must be taken to mean that 40 hours of the midwives' work is of equal value to 40 hours of the technician's work, rather than that, for example, 34 hours of the one is of equal value to 40 hours of the other. It is only on 19. In the present case the written and oral the basis of that assumption that the observations of the County Council focus question can be raised whether the shorter principally on the issue whether the mid- working week of the midwives can be taken into account. (We should therefore disre- gard the fact that the collective agreement 11 — Paragraphs 10 and 12 of the judgment. seems to attribute 'equal value' to the 12 — Paragraphs 6 and 7 of the Opinion. different lengths of working week.)

24. The Court in Barber 14 stated as fol- The scope of 'pay' lows:

22. I would note first that the supplement is clearly pay within the meaning of Arti- cle 119, and hence there would be discri- '... the [national court] wishes to ascertain, in substance, whether equal pay must be

13 — See for example Case C-400/93 Royal Copenhagen [1995] ECR I-1275, paragraph 47 of the judgment. 14 — Case C-262/88 (1990] ECR I-1889.

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ensured at the level of each element of 26. The Ombudsman considers that the remuneration or only on the basis of a principle of transparency would be comprehensive assessment of the consid- infringed if the national court were eration paid to workers. required to undertake a complex analysis of the allowance granted to each employee. The midwives work inconvenient hours and receive a supplement for that reason; the technician does not work inconvenient hours and hence receives no supplement. Common sense and logic support the view that the fair comparison is of monthly basic salaries alone.

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pension. In this case in contrast the mid- 30. I concur with the Finnish Government's wives, working the three-shift system, are view that it is not possible to lay down an entitled to the inconvenient-hours supple- unvarying rule that different elements of ment whereas the technician, working a pay either should or should not be taken normal week, is not. into account in making a pay comparison. However, whereas the Finnish Government submits that the rule will vary depending on factors arising out of the assessment of equal value, I consider that it is rather the nature of the pay structure at issue which will determine how equal pay is to be assessed.

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that individual elements or the bases on 34. What then is the position here? It will which they are granted are difficult or be recalled 20 that a woman employee impossible to disentangle, it may be both establishes a prima facie case of infringe- unrealistic and unprofitable to look at ment of the principle of equal pay for work individual components of the pay package of equal value by showing, first, that she is in isolation. Moreover, to do so may lead to part of a group of predominantly female discrimination against the other sex. In employees performing work of equal value such cases a global assessment may be the to that performed by a group of predomi- only valid — or even feasible — method, nantly male employees and, secondly, that pending a re-structuring of the system. It is the first group receives lower remuneration doubtless such circumstances which the than the comparator group. It is then, Court had in mind when it stated in Royal however, open to the employer to displace Copenhagen 18 that some pay systems were that presumption by showing that the so structured that only a 'global assess- difference in pay is based on objectively ment' could be made in considering whe- justified factors unrelated to any discrimi- ther there was a breach of Article 119. 19 nation on grounds of sex.

would make it difficult to make a sensible related inconveniences 22 including noise, comparison of, on the one hand, a mid- temperature and intensive, repetitive or wife's aggregate salary and supplement monotonous work 23 (the case involved and, on the other hand, the comparator's machine operators and ceramics painters basic salary. working in a ceramics factory). The Court stated that the national court must ascer- tain whether, in the light of the facts relating to the conditions in which the work was carried out, equal value could be attributed to it or whether those facts could be considered to be objective factors unre- lated to any discrimination on grounds of sex such as to justify any pay differen- 36. I accordingly consider that employees tials. 2 4 such as the midwives in the present case will be able to make out a prima facie case of infringement of the principle of equal pay. I do not, however, consider that that necessarily resolves the matter: as indicated above, once an employee has made out a prima facie case of unequal pay, it is open to the employer to show under the third stage that the difference in pay is based on objectively justified factors unrelated to 38. In the present case it seems doubtful any discrimination on grounds of sex. If whether the employer can rely on the the employer can show such justification, inconvenient-hours supplement to justify there will be no finding of infringement of the inequality in basic pay, since the the principle of equal pay. supplement seems to be intended to com- pensate for the inconvenience and disrup- tion to family and social life and to sleep patterns flowing from the various shifts carrying entitlement to the supplement. The County Council has stated in its written observations that the level of salary negotiated for nurses and midwives was set taking account of the fact that those sectors worked on a shift basis so that they 37. The approach I have suggested is received the inconvenient-hours supple- consistent with Royal Copenhagen,21 in ment. If that were so, it would negate the which the Court had been asked what compensatory effect of the supplement. If significance should be attached, when however that is the case, the County ascertaining whether the principle of equal Council may be able to displace the pre- pay had been observed, to, inter alia, sumption of infringement of the principle differences between the work of the two of equal pay which arises from the inequal- groups with regard to paid breaks, freedom to organise their own work and work- 22 — Paragraph 39 of the judgment. 23 — See question 4(i), set out in paragraph 10 of the judgment. 21 — Cited in note 13. 24 — Paragraph 42 of the judgment.

39. It is accordingly my view that where the pay structure is such that it is in principle possible to extract and compare individual strands, that is what should be done, with the employer preserving the possibility of disproving that inequality on The effect of the reduced working hours that basis is due to sex. Where however the pay structure is less penetrable, a global assessment will be all that is possible. It is for the national court to determine whether it is possible in a given case to make an 41. The national court asks in addition item-for-item comparison or whether a whether the reduced number of hours global assessment is all that is feasible. required to be worked by the midwives working the three-shift system in order to constitute a full-time working week for the purposes of salary must be taken into account when a pay comparison is made. The effect of that would of course be that, for the purposes of comparison with a comparator working a normal 40-hour week, the monthly basic salary of the 40. In the latter type of case, the mere fact midwives would be multiplied by 40 / that the structure is (ex hypotbesi) not 34.33 and hence increased. The same effect transparent means that the employer would be had by comparing, not the basic retains the burden of proof of disproving monthly salary, but the pay per hour alleged discrimination. That conclusion actually worked. follows from the decision of the Court in Danfoss 25 in which it was held 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 42. The County Council submits that the pay comparison must be carried out on the basis of pay for each hour actually worked. 25 — Cited in note 16. See also Case 318/86 Commission v France (1988] ECR 3559. It suggests that if, as the Court found in

44. In my view, the general rule must be that the number of hours worked by two employees whose pay is being compared will naturally be taken into account and a difference will justify a difference in pay, so that, to take extreme examples, it would obviously not be discriminatory to pay a 43. The Ombudsman refers to certain cases man working full-time twice as much as a apparently relied on by the County Council woman doing the same job half-time, or at an earlier stage in the proceedings before indeed a man working overtime more than the national court: 27 the cases suggest that a woman not working overtime. The cases whether there is equal pay must be assessed referred to by the Ombudsman, which by reference to the pay received per hour clearly support that proposition, do not worked each week. The Ombudsman however otherwise seem relevant to the responds that the cases cited, all of which issue confronting the Court, since they concern alleged discrimination between concern in general the question of different full-time and part-time employees, are rates of pay or benefits in kind paid to part- irrelevant to this case, in the circumstances time and full-time employees. In this case of which a comparison of hourly rates however it cannot to my mind seriously be argued that the midwives, who are clearly treated by their employer as working a full- 26 — Case 12/81 Garland v British Rail Engineering [1982] ECR 359. time week, should not be regarded as 27 — See Case C-33/89 Kowalska [1990] ECR I-2391, para- working a full-time week. The documents graphs 19 to 20 of the judgment, Case 170/84 Bilka, cited in note 9, paragraph 27, and Joined Cases C-399/92, before the Court suggest, and the presump- C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93 tion should consequently be, that the Helmig and Others [1994] ECR I-5727, paragraphs 26 and 27. reduction in working hours compensates

48. It will accordingly, as with the incon- 46. The Commission adds that the fact that venient-hours supplement, be open in prin- the reduction in working hours may have ciple to the employer to show, if it is indeed pecuniary consequences is not sufficient to the case, that the reduction in hours is not bring it within the scope of the equal pay correctly regarded as compensating for the legislation. 30 While that is correct, it means inconvenience and disruption of the three- simply that Article 119 cannot be inter- shift system but that the resulting difference preted as prescribing, in addition to equal in hourly pay was based on objectively justified factors unrelated to any discrimi- nation on grounds of sex. 28 — Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men ana women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 L 39, p. 40. 31 — See paragraph 24 of the judgment in Defrenne. 29 — Case C-345/89 [1991] ECR I-4047. 32 — Cited in note 13. 30 — Case 149/77 Defrenne v Sabena [1978] ECR 1365, 33 — See paragraph 42 of the judgment and paragraph 39 paragraph 21 of the judgment. above.

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Conclusions

49. Accordingly the questions referred by the Arbetsdomstol should in my opinion be answered as follows:

(1) Where remuneration consists of several elements, for example basic salary and a supplement for inconvenient working hours, each element must in principle be treated independently for the purpose of an equal pay comparison. Where such a comparison shows a prima facie case of infringement of the principle of equal pay, there will be no infringement if the employer shows that the difference in pay is based on objectively justified factors unrelated to any discrimination on grounds of sex.