C-256/01

OPINION OF MR GEELHOED — CASE C-256/01

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 2 April 2003 1

I — Introduction scheme where the condition restricting access to that scheme to lecturers who are employees of the college results in an objectively unjustified difference in treatment? 1. A college of further education terminates the employment of its part-time, mostly female lecturers. It subsequently buys in their services again through the intermedi- ary of an agency with which those lecturers are registered as self-employed persons. Through these arrangements the college seeks to achieve savings in operating costs. For the lecturers concerned the arrange- ments entail a diminution in emoluments in I I — Legal framework relation to those which they received under the original employment relationship with the college. In that context the following questions have arisen:

A — Community law

— whether the female lecturers concerned may compare themselves, in regard to their remuneration, including the con- ditions governing access to a pension scheme, with a male lecturer remaining 2. According to Article 2 EC, the Commu- in the service of the college, and nity has the task of promoting, inter alia, equality between men and women.

— whether the lecturers concerned may demand admission to the pension

2 — OJ 1975 L 45, p. 19. 3 — Now, after amendment. Article 141 EC.

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(c) where a woman is employed on work (a) "employed" means employed under a which, not being work in relation to which contract of service or of apprenticeship paragraph (a) or (b) above applies, is, in or a contract personally to execute any terms of the demands made on her (for w o r k or l a b o u r , and r e l a t e d instance under such headings as effort, skill expressions shall be construed accord- and decision), of equal value to that of a ingly; man in the same employment:

'62. The equal treatment rule (b) a woman is employed on work rated as equivalent with that of a man in the same employment; or

(1) An occupational pension scheme which does not contain an equal treatment rule shall be treated as including one.

(c) a woman is employed on work which, not being work in relation to which (2) An equal treatment rule is a rule which paragraph (a) or (b) applies, is, in terms relates to the terms on which: of the demands made on her (for instance under such headings as effort, skill and decision) of equal value to that of a man in the same employment, but (apart from the rule) any of the terms referred to in subsection (2) is or becomes less favourable to the woman (a) persons become members of the than it is to the man, the term shall be scheme; and treated as so modified as not to be less favourable.

(b) members of the scheme are treated.

(4) An equal treatment rule does not operate in relation to any difference as (3) Subject to subsection (6), an equal between a woman and a man in the treatment rule has the effect that where: operation of any of the terms referred to

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7. The occupational pension scheme for teachers is contained in the Teachers' 9. Ms Allonby was originally employed by Superannuation Scheme 1988 (TSS) and is the College as a part-time lecturer in office governed by the Teachers' Superannuation technology. She was employed from 1990 (Consolidation) Regulations 1988 and the to 1996 on a succession of one-year Teachers' Superannuation (Amendment) contracts under which she was paid by Regulations 1993 (TSS regulations). The the hour at a rate determined by the level at TSS is administered by the Secretary of which she was teaching. It is not disputed State for Education and Employment. that for present purposes these were con- Under the rules governing the TSS teachers tinuous contracts of service, carrying with employed under a contract of employment, them an employer's statutory obligations. whether full-time or part-time, are eligible to join this pension scheme.

10. By 1996, those obligations had become I I I— Facts of the main proceedings and financially more onerous for the employer course of the procedure because of legislative changes which required part-time lecturers to be accorded equal or equivalent benefits to full-time lecturers. The College employed 341 part- 8. This reference is made in proceedings time lecturers. In order to reduce its over- between Ms Allonby, on the one hand, and heads it decided not to renew their Accrington and Rossendale College ('the contracts of employment and instead to I-880

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— the College on the ground that it was discriminating against her as a contract worker contrary to the Sex Discrimi- nation Act 1975;

11. Of the 341 hourly-paid part-time lec- turers who were made redundant by the College and were offered the opportunity of again working through the intermediary of ELS in 1996, 110 were men and 231 were women. Also in 1996 the College had 105 full-time salaried lecturers, of whom — ELS on the ground that it was obliged 55 were men and 50 women and by law to pay her equally — that is, 23 part-time salaried lecturers of whom pro rata — with a male full-time lec- 12 were men and 11 women. turer at the College; and

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— the State, represented by the Depart- 15. Before the Court of Appeal it was ment for Education and Employment, contended on behalf of Ms Allonby that: on the ground that it was acting unlawfully in denying her access, as a self-employed worker, to the TSS.

(a) Her dismissal by the College consti- tuted unlawful indirect sex discrimi- nation: this issue was remitted to the Employment Tribunal for reconsider- It appears from the case file in the main ation; proceedings that both groups of proceed- ings are in the nature of a test case for others similarly affected.

17. Against ELS Ms Allonby claims that Article 141 EC entitles her, when she works (d) The College agrees with ELS the fee at the College, to a rate of remuneration which it will pay for each lecturer. ELS equal to that of a male lecturer employed agrees with Ms Allonby the fee which by the College on work which is to be taken she is to receive for each assignment to be of equal value. Ms Allonby seeks and sets the conditions under which its against ELS a rate of pay equal to that of lecturers are to work. The College has employed lecturers at the College by means no direct control over ELS in those or of a comparison with a named teacher, other matters; Mr Ross Johnson.

(e) The College and ELS employ both male 18. The circumstances material to that and female staff. equal pay claim are that:

(a) Ms Allonby and Mr Johnson undertake 19. Against ELS, the College and the lecturing work of presumptively equal Secretary of State Ms Allonby claims access value at the College although not to the TSS either (i) by comparison with a always on the same site; male lecturer employed by the College or (ii) since the TSS was set up pursuant to statute, without such comparison if she can show statistically that a considerably smaller proportion of female than of male teachers who are otherwise eligible to join the TSS can comply with the requirement of being employed under a contract of (b) Mr Johnson is employed by the College employment. Neither the existence of such as a lecturer and is paid by the College proof nor the question of objective justifi- at a rate set by the College; cation has yet been determined by the

(c) No self-employed person is eligible to be a member of the TSS; The questions submitted for a preliminary ruling

(d) The TSS provides old age pensions and other benefits calculated principally by reference to the duration of the 21. By order of 23 March 2001, which was member's employment and to a refer- received at the Court on 3 July 2001, the ence salary earned in employment to Court of Appeal referred the following

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questions to the Court for a preliminary Commission provided further clarification ruling: of their views at the hearing on 28 January 2003.

'1. Does Article 141 EC have direct effect so as to enable a woman to claim equal pay with a man in the circumstances of IV — Assessment this case?

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24. If employers adopt the practice of the College, are according to national law contracting out activities which are per- two separate legal entities does not of itself formed predominantly by women with the preclude the application of Article 141 EC. attendant unfavourable consequences on Unlike under section 1(6)(c) of the Equal remuneration, the effect is that the pro- Pay Act 1970 where the comparator must tection afforded by Article 141 EC is lost if be employed by the same employer or an that provision cannot — any longer — be associated employer in the same undertak- relied on in such a situation. That is all the ing or group of undertakings, that require- more so if employers specifically resort to ment is not to be found in the Court's such arrangements in order to evade the case-law. She considers that in order to give consequences of the principle of equal pay full effect to the principle of equal pay for laid down in Article 141 EC. Therefore it is men and women for equal work she must essential for Ms Allonby that Article 141 be able to plead the work performed and EC be so construed as to retain its effec- the pay received by men and women in the tiveness also in situations in which estab- same establishment or service, irrespective lishments, departments or undertakings of who the employer is and with there contract out their activities wholly or in being no requirement that it must be the part. same employer. For under the judgment in Defrenne II 5it is sufficient that a woman and a male comparator are 'in the same establishment or service'. In the present case both she and Mr Johnson work in the same establishment.

Ms Allonby asserts that in the present case categories the College and ELS agree an it is so attributable. For the source of the hourly rate for lecturers working at the discrimination is the College when it took College. Thus under the agreement with its decision to use ELS as an intermediary. ELS the College has a powerful influence She was thereby required, if she wished to on a lecturer's pay. In its contractual continue to lecture at the College, to relationship with ELS the College is said register with ELS as a self-employed per- to be obliged to apply the principle of equal son. Subsequently, the College was able to pay for equal work to men and women avail itself via ELS more cheaply of her working for it and at its schools, regardless services. However, she still actually works of whether they are directly employed or for the College and subject to the direction indirectly work for it under the agreement and instructions of that establishment. In with ELS. Ms Allonby's view, the fact that ELS is not in itself the source of the discrimination does not preclude the applicability of Article 141 EC. For that provision is also applicable where the source of the dis- crimination is the management of a group of undertakings, a collective labour agree- ment or a legislative provision. In all those cases the source of the discrimination is 29. According to ELS, the United Kingdom outside the purview of the individual Government, the German Government and employer yet he must in the final analysis the Commission Article 141 EC does not pay more to his female employees if have direct effect in the present case. discrimination is found.

31. ELS points out that it offers services to educational establishments in the whole of the United Kingdom. The lecturers who register with it may state their preference 33. ELS further points out that the aim of for a specific College and may indicate the Article 141 EC, namely equal pay, requires periods when they are available. One of the an analysis of the pay provided by an conditions applied by ELS is that the employer to its male and female work- lecturers registered with it work on assign- force. 7Nor may the concept of pay be ments as self-employed persons. A lecturer interpreted so as to refer to the salaries paid is under no obligation to accept a specific by different employers. In that connection assignment. ELS and the lecturer agree a fee ELS points out that a central element of the for each assignment accepted by the lec- concept of pay under the Court's case-law turer. A lecturer may accept assignments is that a benefit arose from an employment with several educational establishments. relationship. 8 ELS agrees annually with each educational establishment a fee for the services to be provided. The amount thereof is deter- mined on a commercial basis. Finally, ELS points out that the College has no influence on the fee paid by ELS to Ms Allonby and also that ELS has no influence on the remuneration paid by the College to Mr Johnson. 34. ELS points out that Ms Allonby is holding ELS and not her ex-employer responsible for the difference in pay between her and the male comparator employed by the College. If Ms Allonby's claim is conceded the practical con- 32. ELS explains that, although all the sequences go much further than the facts lecturers registered in its database carry of the present case. That means, inter alia, out their assignments as self-employed persons, ELS is regarded as the employer in connection with claims under the Equal 7 — In that connection ELS refers to the following case-law: Defrenne II (cited above at footnote 5); Case 129/79 Pay Act. That is owing to the definition of Macartbys [1980] ECR 1275; Case C-132/92 Roberts 'employed' in section 1(6)(a) of that law. [1993] ECR I-5579; and Case C-200/91 Coloroll Pension Trustees [1994] ECR I-4389. That definition also encompasses agree- 8 — Judgment in Barber (cited above in footnote 4).

35. The United Kingdom Government also 37. In its written observations the Com- points to such consequences which were mission put forward two alternatives. The not intended by Article 141 EC. A pay rise first consists in deeming the College still to agreed by an employer with his staff could be the employer rather than ELS. The automatically trigger a claim on the basis of arrangement conceived of by the College unequal pay in the case of another must be disregarded. This merely serves in employer, unless that employer also raises order to avoid a direct contractual relation- the salaries of its staff. Moreover, one ship with Ms Allonby in order thus to employer may not be aware of such pay circumvent the relevant employment legis- rises, irrespective of the desirability of such lation. However, at the hearing the Com- disclosure, particularly in the private sec- mission announced that it was abandoning tor. For agencies providing staff that would this line of argument. None the less, the mean that they would be required to pay Commission considers it unsatisfactory their staff the same salary as that paid by than an employer can significantly reduce the client to its staff. Thus an agency could rights conferred on employees under not supply staff until it had ascertained Article 141 EC (or other employment levels of salary and other conditions of legislation) but at the same time is of the employment — including health insurance view that the solution to that problem is or sickness benefits often paid by a third not to be found in an artificial extension of party — provided by that client. The Article 141 EC such as the deeming of a agency would then have to ensure the same notional employer with all the problems level of salary for all its staff, irrespective of which that entails.

39. In my assessment I am proceeding from 42. If that judgment is applied to the the starting-point that Ms Allonby con- present case the following picture emerges. tinues to work at the same College, albeit It is apparent from the order for reference as a self-employed person via ELS and and the case file that Ms Allonby carries performs the same work there as before. Is out assignments in the context of her she entitled as a self-employed person to agreement with ELS for the provision of compare herself with an employee of that services. Indeed she carries out those College whom I am assuming performs assignments at the College where her com- equivalent lecturing duties? Ms Allonby parator is employed but there is no longer takes the view that the reply must be any employment relationship between her affirmative. The fact that from a formal and the College. As established by the point of view the employers are different is in her view not relevant. Moreover, she is demanding that equal pay from ELS. I will 9 — Cited above in footnote 6. deal with these matters separately. 10 — Emphasis added.

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sional activities are substantively little 48. In its written observations the Com- changed: she operates under the direction mission expressed an initial preference for a and responsibility of the College which judicial solution. It initially asserted that moreover continues to be entrusted with the College, although no longer formally the organisation of her activities. The the employer, could still be regarded as College remains liable to its students for such for the purposes of Article 141 EC. the quality of the teaching given by her. In The idea behind this was to counter what it brief in all her activities she is de facto regards as a misuse of law where employers bound by the instructions of the manage- who dismiss their part-time staff sub- ment of the College as principal. There is sequently make use of their services again however one significant difference. Her via an agency, thus seeking to evade the remuneration for her work as a subcon- relevant employment-protection legis- tractor is received from ELS which is lation, such as equal pay for equal or contractually bound to deliver the edu- equivalent work and other social rights cational services required by the College. conferred on part-time employees. Such 'misuse' could undermine the operation of the principle of equality laid down in Article 141 EC. Accordingly, in cases such as this the decisive factor should not be the legal relations between the original employer and his part-time employees, but the factual relations which none the less remain unaltered. 46. Incidentally I would observe that both ELS and the United Kingdom Government concede by implication that the changes which have occurred since August 1996 in Ms Allonby's legal position have had very little effect on her functions as a lecturer at the College.

arises as to how long the legal fiction could cause of the difference in the pay received be used in order to hold the original by Ms Allonby when she was employed by employer responsible for differences in pay. the College and the pay which she now For by the simple effluxion of time vari- receives for her assignments from ELS may ations in conditions of pay may increase perhaps be attributable to the College but further. Initially the Commission sought to certainly not to ELS. In the words of the attribute liability to the body which in its Court ELS is therefore not the 'body which view could be held responsible from the is responsible for the inequality and outset for the difference occurring, namely which 11 could restore equal treatment'. the College when it decided to restructure On any other view the result would be that its organisation. The problem in that con- one employer (ELS) would have to bear the nection is that the College cannot be held consequences attributable to another entirely responsible for the difference employer (the College) without there being occurring between Ms Allonby and her any connection between the body respon- comparator. For the fee which Ms Allonby sible for the inequality and the body receives for the services provided by her is required to restore equal treatment. agreed between her and ELS. The College cannot be held liable for that even if it endeavours in its relations with ELS to ensure that equivalence is maintained as between the remuneration paid to its employees and the subcontractors engaged by ELS. Moreover, it goes without saying that over time maintenance of parity in pay 51. In my view the Commission was cor- conditions becomes more difficult. This rect to point out that in the present case it may be accounted for again by the lack of was the termination of employment itself a single source which could be held liable which was open to challenge on the ground for preserving and restoring parity. that the projected restructuring of legal relations with the part-time staff produced unequal effects for women. Indeed it was challenged in the present case and Ms Allonby obtained certain satisfaction.

53. I share the view taken by the Commis- sion in this connection, though it is not easy to accept. The unmistakeable phenomenon 55. In its second question the referring within the Community of a shift away from court seeks to ascertain whether traditional employment relationships to Article 141 EC has direct effect with the more flexible arrangements, such as forms result that Ms Allonby can claim access to of self-employment, raises the more general the TSS, whether on the basis of a compari- question as to the consequences to be son of herself with Mr Johnson or on the drawn from that phenomenon by the basis of statistical evidence. Community legislature concerning the spe- cific protection conferred by Community law on workers whether employed or self- employed. The principle of equal treat- ment, laid down as a fundamental legal principle in Articles 13 and 141 EC and Articles 21(1) and 23 of the Charter of 56. As is apparent from the foregoing the Fundamental Rights of the European status of part-time lecturers who were Union, is an essential feature of that pro- initially employed at the College and are tection. That justifies specific action by the now engaged through the intermediary of Community legislature under Article 141(3) ELS has changed. At the College they EC. In my view such action may precede worked on the basis of a contract of other measures to ensure the protection of service; with ELS they work as self-em- workers for which under Article 137(2)(b) ployed persons on the basis of a contract unanimity in the Council is required. for services.

where the person is contractually bound assumption that this definition indirectly under a contract to provide services. discriminates against women such discrimi- nation can be detected by a purely legal analysis, and (3) that it is immaterial whether she can point to a comparator with her present employer, ELS, in order to identify the alleged discrimination because the discrimination stems from the con- 58. The second question also arises in ditions governing access over which ELS connection with the fact that Ms Allonby has no control. cannot point to a comparator which is a requirement under national pension legis- lation. Ms Allonby states that such a requirement impedes her claim for access to the pension scheme. She takes the view that, in support of her claim to access to the pension scheme, she may refer to Mr Johnson or, if the reply to the first question and thus also to the first part of 60. Ms Allonby points out that the Court the second question is negative, she may in cases of unequal treatment is satisfied by show on the basis of statistical evidence statistics proving that a practice or con- that the exclusion from participation in the dition applied disproportionately disadvan- pension scheme in respect of self-employed tages women. In such situations a com- workers affects considerably more women parator who does the same work for the than men. This disadvantage is accounted same undertaking or establishment is not for by the definition in the pension scheme required. under which persons engaged under a contract to provide services are excluded from the scheme. If she is successful in that claim and there is no objective justificatory ground for such exclusion, the Secretary of State in his capacity as legislator and administrator of the pension scheme will have to change those conditions with the result ultimately that lecturers engaged as self-employed persons under contracts to 61. In support of her claim she relies on the provide services will be able to join the judgments in Rinner-Kühn 12 and Seymour- scheme and their employer ELS will be Smith and Perez 13in which the discrimi- obliged to contribute to it. nation stemmed from legislation. She points out that the same approach has been followed in the case of sector-wide occu- pational pension schemes, as for example in the Fisscher 1 4judgment in which the Court held that the right to access to a scheme

62. Ms Allonby observes that the judg- ments in Fisscher 15 and Bilka 16 concerned access to a pension scheme. In that con- nection the work carried out by the women concerned was not directly in issue. That is in contrast to cases concerning equal bene- 64. Ms Allonby takes the view that the fits under pension schemes. In those cases it judgment in Coloroll 19 on which the may be necessary to determine if the United Kingdom Government relies in woman is receiving less pension in respect support of its assertion that Article 141 of the same work or work of equal value. EC is confined to situations in which there Even in such cases the Court has not found is a sexually mixed workforce is of no avail it necessary to confine its judgment to to it. In her view that case concerned an circumstances in which there is an actual occupational pension scheme covering only comparator if it is clear from the terms of one workplace which employed only men. the scheme itself that either men or women For those reasons there could therefore be receive unequal pensions for equal work no discrimination. In contrast the TSS is a carried out in the past. nationwide scheme for both male and female teachers.

65. The United Kingdom Government con- 63. She states that as a consequence of the siders that for the same reasons as in provisions of the TSS a lecturer employed connection with the first question the reply under a contract of employment doing the

17 — Case 23/83 [1984] ECR 3225. 15 — Cited above at footnote 14. 18 — Case C-7/93 [1994] ECR I-4471. 16 — Case 170/84 [1986] ECR 1607. 19 — Cited above at footnote 7.

to the first part of the second question must equally impossible for it to set up its own also be negative. Mr Johnson and his pension scheme under which benefits for colleagues are eligible to join the scheme different periods of service were calculated because the College has decided to employ in different ways according to the terms of them under a contract of service. Con- each ELS client's pension scheme. versely, Ms Allonby and her colleagues cannot join the scheme because ELS has opted to engage them under a contract to provide services. As has been established by the courts, the College has no control over 67. As far as the second part of this ELS as regards the levels of fees paid by it; question is concerned the United Kingdom it certainly could not be suggested that the Government observes that in the national College controlled whether persons under proceedings statistical evidence has yet to contract to ELS were eligible to join the be produced which would enable the courts TSS. According to the United Kingdom to determine the existence of discrimi- Government, all persons working for ELS nation. The United Kingdom Government are employed under a contract to provide doubts whether Ms Allonby can demon- services and are therefore excluded from strate that since in regard to ELS alone the TSS. Ms Allonby cannot rely on there is equality as between men and Article 141 EC because she can point to women. On the basis of that relationship no comparator. of equality it cannot be stated that appreci- ably more women than men are affected by the contracting-out of tasks. The United Kingdom Government further doubts whether the Court's case-law in Rinner- Kühn, Liefting and Benne confers on Ms Allonby entitlement to join the TSS — and thus obliges ELS to pay con- tributions in respect of her — even though ELS is not practising any inequality on the ground of sex as between the male and female lecturers on its database. In the 66. Likewise the United Kingdom Govern- United Kingdom Government's view the ment points to the consequences of the answer in that connection is negative. view put forward by Ms Allonby. An agency such as ELS providing staff would then be obliged under Article 141 EC to ensure that the same pension conditions as those applicable to clients' employees were 68. The United Kingdom Government applied to staff on its database. That would refers to the Court's case-law 2 0under be unworkable. The duty would not only which pension benefits may constitute pay arise in the case of sectoral pension schemes within the meaning of Article 141 EC when but also where clients have their own they emanate at least indirectly from the occupational pension schemes, which is employer. It follows from this that normal in the private sector in the United Kingdom. It would be impossible for such an agency to secure for its staff membership 20 — Judgments in Bilka (cited above at footnote 16) and Beune of a client's pension scheme. It would be (cited above at footnote 18).

69. The United Kingdom Government points out that Ms Allonby's argument implies that the terms of a pension scheme can infringe Article 141 EC without there being any inequality on the ground of sex 71. It points out that the TSS was set up as in pay as between the employees of any a pension scheme for employees of public participating employer. That is impossible educational establishments which also to reconcile, the United Kingdom Govern- offers employees of private establishments ment submits, with the grounds on which the possibility of joining provided an appli- occupational pensions fall within the scope cation is made under a specific procedure of Article 141 EC. In its view a pension by the employer concerned. However, scheme and its trustee cannot infringe establishments such as ELS which engage Article 141 EC if there is no breach of that lecturers on the basis of contracts to pro- article by a participating employer. vide services have never manifested a desire to participate. It further points out that the United Kingdom has a form of State pension and it is for employers to set up pension schemes in substitution therefor but that it is by no means desirable that they should be compelled to do so. 70. The United Kingdom Government further points to another illogical con- sequence of the view contended for on behalf of Ms Allonby. An employer, in this case ELS, who is according equal treatment to all its lecturers, whether male or female, on terms not entitling them to join the TSS would be obliged in pursuance of the 72. As far as the definition of 'employment' is concerned the United Kingdom Govern- 21—Judgments in Coloroll (cited above at footnote 7, ment pointed out that there is a difference paragraphs 17 to 24) and Barber (cited above at footnote 4, paragraphs 28 and 29). under national law between a contract of I-898

75. As to the first part of the second question I am at one with the view put forward by Ms Allonby, the Commission 73. Likewise the Commission considers and the United Kingdom Government, that if Ms Allonby cannot rely on namely that the reply in that connection Article 141 EC for the purpose of her claim must be the same as the reply to the first to equal pay nor can she in regard to question. Pay for the purposes of pension entitlement. For occupational pen- Article 141 EC may be defined as all sions come within Article 141 EC because existing and future consideration in cash they constitute pay by the employer. One or in kind which the worker receives cannot be viewed in isolation of the other. directly or indirectly from his employer. It observes that the choice made by ELS to The Court has held that pension benefits engage all lecturers on the basis of come within that definition. Accordingly, if contracts to provide services with the con- Ms Allonby may not in respect of one sequence that they cannot join the TSS has component of her remuneration compare nothing to do with discrimination on the herself with a specific comparator then nor ground of sex. The Commission also points may she in respect of another component of out that Ms Allonby's claim would result in her remuneration. a change not only in regard to her but in regard to all staff.

76. Since pension benefits come within the Assessment concept of pay that means that in that connection no distinction on the ground of sex may be made (1) in regard to entitle- ment to membership and (2) in regard to the grant of benefits. An employer who did 74. I make the observations set out below so would be acting in breach of Article 141 concerning the question whether in con- EC.

81. I am not persuaded by the arguments put forward by the United Kingdom Gov- ernment to the effect that there can be no 79. Even though Ms Allonby cannot rely discrimination. Naturally I share the view directly on Article 141 EC in order to that no charge in that connection may be compare her situation with that of levelled against ELS or the College. The Mr Johnson, that does not mean that there problem does not lie there. For the problem cannot be indirect discrimination stemming is in the legislation itself. That is also why from a sector-wide or legislative scheme. In Ms Allonby has addressed her claim pri- the present case the TSS regulations marily to the Secretary of State, not so exclude lecturers who teach under an much in his capacity as trustee but rather in agreement to provide services. There may his capacity as legislator. The United King- be (indirect) discrimination if it appears dom Government's observation to the that appreciably more women than men are effect that the position of a trustee of a

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pension fund mirrors the obligations of the that prohibition, places employees and employer under Article 141 EC is in itself self-employed persons on an equal footing; indeed correct but disregards the fact that that being so, it is difficult to maintain that, the discrimination may also stem from the in respect of pension benefits, which con- wording of the legislation itself. stitute deferred pay, there is no requirement for such parity.

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85. The United Kingdom Government's whether the definition used in the TSS argument that an employer is not obliged regulations is indirectly discriminatory. If to set up its own occupational pension she is successful in that, and there is no scheme or to participate in it is not relevant objective justification, the legislature will at this stage. Moreover, Ms Allonby con- be required to enact an amendment. siders that private educational establish- Whether she is then successful in her claim ments are also obliged to contribute to the against ELS for it to contribute to the TSS occupational pension fund in question but in respect of her is a separate matter. In that establishments such as ELS on account light of the foregoing I consider that the of the definition used now have no choice. reply to the question referred must be The question arising is whether Ms Allonby affirmative. on the basis of statistical evidence can show

V — Conclusion

86. On the basis of the foregoing considerations I suggest that the Court should reply as follows to the questions referred by the Court of Appeal (England and Wales) (Civil Division):

'(1)In a situation such as that in the main proceedings where differences are established as between the pay of lecturers employed by the College and the pay of lecturers who under contracts for services with a third party provide services at the College, Article 141(1) EC cannot be relied on against the College or that third party because the pay differences including entitlement to join a pension scheme cannot be attributed to a single source and there is therefore no entity which can be held responsible for that difference and its elimination.