61980J0096

1 . SOCIAL POLICY - MEN AND WOMEN - EQUAL PAY - PRINCIPLE - HOURLY RATE OF PAY FOR PART-TIME WORK LOWER THAN THAT FOR FULL-TIME WORK - PERMISSIBILITY - CONDITIONS - INDIRECT DISCRIMINATION AGAINST FEMALE EMPLOYEES - PROHIBITION - NATIONAL COURT TO DECIDE

( EEC TREATY , ART . 119 )

2 . SOCIAL POLICY - MEN AND WOMEN - EQUAL PAY - PRINCIPLE - DIRECT EFFECT - HOURLY RATE OF PAY FOR PART-TIME WORK LOWER THAN THAT FOR FULL-TIME WORK - EXISTENCE OF DISCRIMINATION BASED ON SEX TO BE ESTABLISHED BY THE NATIONAL COURTS

( EEC TREATY , ART . 119 )

3 . SOCIAL POLICY - MEN AND WOMEN - EQUAL PAY - PRINCIPLE - SAME CONTENT AND SCOPE IN ARTICLE 119 OF THE TREATY AND IN DIRECTIVE 75/117/EEC

( EEC TREATY , ART . 119 ; COUNCIL DIRECTIVE 75/117/EEC , ART . 1 )

1 . THE FACT THAT WORK PAID AT TIME RATES IS REMUNERATED AT AN HOURLY RATE WHICH VARIES ACCORDING TO THE NUMBER OF HOURS WORKED PER WEEK DOES NOT OFFEND AGAINST THE PRINCIPLE OF EQUAL PAY LAID DOWN IN ARTICLE 119 OF THE TREATY IN SO FAR AS THE DIFFERENCE IN PAY BETWEEN PART-TIME WORK AND FULL-TIME WORK IS ATTRIBUTABLE TO FACTORS WHICH ARE OBJECTIVELY JUSTIFIED AND ARE IN NO WAY RELATED TO ANY DISCRIMINATION BASED ON SEX . 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 REPRESENTED AS A DIFFERENCE BASED ON WEEKLY WORKING HOURS IS OR IS NOT IN REALITY DISCRIMINATION BASED ON THE SEX OF THE WORKER .

THEREFORE 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 PREDOMINANTLY OF WOMEN .

2 . ARTICLE 119 OF THE TREATY APPLIES DIRECTLY TO ALL FORMS OF DISCRIMINATION WHICH MAY BE IDENTIFIED SOLELY WITH THE AID OF CRITERIA OF EQUAL WORK AND EQUAL PAY REFERRED TO BY THE ARTICLE IN QUESTION , WITHOUT NATIONAL OR COMMUNITY MEASURES BEING REQUIRED TO DEFINE THEM WITH GREATER PRECISION IN ORDER TO PERMIT OF THEIR APPLICATION . THE FORMS OF DISCRIMINATION WHICH MAY BE THUS JUDICIALLY IDENTIFIED INCLUDE CASES WHERE MEN AND WOMEN RECEIVE UNEQUAL PAY FOR EQUAL WORK CARRIED OUT IN THE SAME ESTABLISHMENT OR SERVICE , PUBLIC OR PRIVATE . WHERE THE NATIONAL COURT IS ABLE , USING THE CRITERIA OF EQUAL WORK AND EQUAL PAY , WITHOUT THE OPERATION OF COMMUNITY OR NATIONAL MEASURES , TO ESTABLISH THAT THE PAYMENT OF LOWER HOURLY RATES OF REMUNERATION FOR PART-TIME WORK THAN FOR FULL-TIME WORK REPRESENTS DISCRIMINATION BASED ON DIFFERENCE OF SEX THE PROVISIONS OF ARTICLE 119 OF THE TREATY APPLY DIRECTLY TO SUCH A SITUATION .

3 . 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 .

IN CASE 96/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE EMPLOYMENT APPEAL TRIBUNAL OF THE UNITED KINGDOM FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT TRIBUNAL BETWEEN

J . P . JENKINS

AND

KINGSGATE ( CLOTHING PRODUCTIONS ) LTD ,

ON THE INTERPRETATION OF ARTICLE 119 OF THE EEC TREATY AND OF 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 ,

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 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 ' ' .

4 THE INDUSTRIAL TRIBUNAL , HEARING THE CASE AT FIRST INSTANCE , HELD IN ITS DECISION OF 5 FEBRUARY 1979 THAT IN THE CASE OF PART-TIME WORK THE FACT THAT THE WEEKLY WORKING HOURS AMOUNTED , AS IN THAT CASE , TO 75% OF THE FULL WORKING HOURS WAS SUFFICIENT TO CONSTITUTE A ' ' MATERIAL DIFFERENCE ' ' BETWEEN PART-TIME WORK AND FULL-TIME WORK WITHIN THE MEANING OF SECTION 1 ( 3 ) OF THE ABOVE-MENTIONED ACT , ACCORDING TO WHICH :

' ' AN EQUALITY CLAUSE SHALL NOT OPERATE IN RELATION TO A VARIATION BETWEEN THE WOMAN ' S CONTRACT AND THE MAN ' S CONTRACT IF THE EMPLOYER PROVES THAT THE VARIATION IS GENUINELY DUE TO A MATERIAL DIFFERENCE ( OTHER THAN THE DIFFERENCE OF SEX ) BETWEEN HER CASE AND HIS . ' '

5 THE PLAINTIFF IN THE MAIN ACTION APPEALED AGAINST THAT DECISION TO THE EMPLOYMENT APPEAL TRIBUNAL , WHICH DECIDED THAT THE DISPUTE RAISED PROBLEMS CONCERNING THE INTERPRETATION OF COMMUNITY LAW AND REFERRED A NUMBER OF QUESTIONS TO THE COURT FOR A PRELIMINARY RULING .

6 ACCORDING TO THE INFORMATION IN THE ORDER MAKING THE REFERENCE , PRIOR TO 1975 THE EMPLOYER DID NOT PAY THE SAME WAGES TO MALE AND FEMALE EMPLOYEES BUT THE HOURLY RATES OF PAY WERE THE SAME WHETHER THE WORK WAS PART-TIME OR FULL-TIME . FROM NOVEMBER 1975 THE PAY FOR FULL-TIME WORK ( THAT IS TO SAY , THE PAY FOR THOSE WORKING 40 HOURS PER WEEK ) BECAME THE SAME FOR MALE AND FEMALE EMPLOYEES BUT THE HOURLY RATE FOR PART-TIME WORK WAS FIXED AT A RATE WHICH WAS 10% LOWER THAN THE HOURLY RATE OF PAY FOR FULL-TIME WORK .

7 IT ALSO APPEARS FROM THE ORDER MAKING THE REFERENCE THAT AT THE TIME OF THE PROCEEDINGS BEFORE THE INDUSTRIAL TRIBUNAL THE PART-TIME WORKERS EMPLOYED BY THE EMPLOYER IN QUESTION WERE ALL FEMALE WITH THE EXCEPTION OF A SOLE MALE PART-TIME WORKER WHO HAD JUST RETIRED AND WHO AT THE TIME HAD BEEN AUTHORIZED TO CONTINUE WORKING , EXCEPTIONALLY AND FOR SHORT PERIODS , AFTER THE NORMAL AGE OF RETIREMENT .

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?

' '

FIRST THREE QUESTIONS

9 IT APPEARS FROM THE FIRST THREE QUESTIONS AND THE REASONS STATED IN THE ORDER MAKING THE REFERENCE THAT THE NATIONAL COURT IS PRINCIPALLY CONCERNED TO KNOW WHETHER A DIFFERENCE IN THE LEVEL OF PAY FOR WORK CARRIED OUT PART-TIME AND THE SAME WORK CARRIED OUT FULL-TIME MAY AMOUNT TO DISCRIMINATION OF A KIND PROHIBITED BY ARTICLE 119 OF THE TREATY WHEN THE CATEGORY OF PART-TIME WORKERS IS EXCLUSIVELY OR PREDOMINANTLY COMPRISED OF WOMEN .

10 THE ANSWER TO THE QUESTIONS THUS UNDERSTOOD IS THAT THE PURPOSE OF ARTICLE 119 IS TO ENSURE THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN FOR THE SAME WORK . THE DIFFERENCES IN PAY PROHIBITED BY THAT PROVISION ARE THEREFORE EXCLUSIVELY THOSE BASED ON THE DIFFERENCE OF THE SEX OF THE WORKERS . CONSEQUENTLY THE FACT THAT PART-TIME WORK IS PAID AT AN HOURLY RATE LOWER THAN PAY FOR FULL-TIME WORK DOES NOT AMOUNT PER SE TO DISCRIMINATION PROHIBITED BY ARTICLE 119 PROVIDED THAT THE HOURLY RATES ARE APPLIED TO WORKERS BELONGING TO EITHER CATEGORY WITHOUT DISTINCTION BASED ON SEX .

11 IF THERE IS NO SUCH DISTINCTION , THEREFORE , THE FACT THAT WORK PAID AT TIME RATES IS REMUNERATED AT AN HOURLY RATE WHICH VARIES ACCORDING TO THE NUMBER OF HOURS WORKED PER WEEK DOES NOT OFFEND AGAINST THE PRINCIPLE OF EQUAL PAY LAID DOWN IN ARTICLE 119 OF THE TREATY IN SO FAR AS THE DIFFERENCE IN PAY BETWEEN PART-TIME WORK AND FULL-TIME WORK IS ATTRIBUTABLE TO FACTORS WHICH ARE OBJECTIVELY JUSTIFIED AND ARE IN NO WAY RELATED TO ANY DISCRIMINATION BASED ON SEX .

12 SUCH MAY BE THE CASE , IN PARTICULAR , WHEN BY GIVING HOURLY RATES OF PAY WHICH ARE LOWER FOR PART-TIME WORK THAN THOSE FOR FULL-TIME WORK THE EMPLOYER IS ENDEAVOURING , ON ECONOMIC GROUNDS WHICH MAY BE OBJECTIVELY JUSTIFIED , TO ENCOURAGE FULL-TIME WORK IRRESPECTIVE OF THE SEX OF THE WORKER .

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 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 .

14 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 PREDOMINANTLY OF WOMEN .

FOURTH QUESTION

16 IN THE FOURTH AND LAST QUESTION , THE NATIONAL COURT ASKS WHETHER THE PROVISIONS OF ARTICLE 119 OF THE TREATY ARE DIRECTLY APPLICABLE IN THE CIRCUMSTANCES OF THIS CASE .

17 AS THE COURT HAS STATED IN PREVIOUS DECISIONS ( JUDGMENT OF 8 APRIL 1976 IN CASE 43/75 , DEFRENNE ( 1976 ) ECR 455 ; JUDGMENT OF 27 MARCH 1980 IN CASE 129/79 , WENDY SMITH ( 1980 ) ECR 1275 AND JUDGMENT OF 11 MARCH 1981 IN CASE 69/80 , WORRINGHAM ), ARTICLE 119 OF THE TREATY APPLIES DIRECTLY TO ALL FORMS OF DISCRIMINATION WHICH MAY BE IDENTIFIED SOLELY WITH THE AID OF CRITERIA OF EQUAL WORK AND EQUAL PAY REFERRED TO BY THE ARTICLE IN QUESTION , WITHOUT NATIONAL OR COMMUNITY MEASURES BEING REQUIRED TO DEFINE THEM WITH GREATER PRECISION IN ORDER TO PERMIT OF THEIR APPLICATION . AMONG THE FORMS OF DISCRIMI- NATION WHICH MAY BE THUS JUDICIALLY IDENTIFIED , THE COURT MENTIONED IN PARTICULAR CASES WHERE MEN AND WOMEN RECEIVE UNEQUAL PAY FOR EQUAL WORK CARRIED OUT IN THE SAME ESTABLISHMENT OR SERVICE , PUBLIC OR PRIVATE .

18 WHERE THE NATIONAL COURT IS ABLE , USING THE CRITERIA OF EQUAL WORK AND EQUAL PAY , WITHOUT THE OPERATION OF COMMUNITY OR NATIONAL MEASURES , TO ESTABLISH THAT THE PAYMENT OF LOWER HOURLY RATES OF REMUNERATION FOR PART-TIME WORK THAN FOR FULL-TIME WORK REPRESENTS DISCRIMINATION BASED ON DIFFERENCE OF SEX THE PROVISIONS OF ARTICLE 119 OF THE TREATY APPLY DIRECTLY TO SUCH A SITUATION .

ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975

19 THE NATIONAL COURT ALSO RAISES WITH REGARD TO ARTICLE 1 OF COUNCIL DIRECTIVE 75/117/EEC OF 10 FEBRUARY 1975 THE SAME QUESTIONS OF INTERPRETATION AS THOSE EXAMINED ABOVE IN RELATION TO ARTICLE 119 OF THE TREATY .

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 .

THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF BELGIUM , THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THIS CASE IS , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE EMPLOYMENT APPEAL TRIBUNAL BY AN ORDER DATED 25 FEBRUARY 1980 , HEREBY RULES :

1 . 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 PAY OF PART-TIME WORKERS ON THE GROUND THAT THAT GROUP OF WORKERS IS COMPOSED EXCLUSIVELY OR PREDOMINANTLY OF WOMEN .

2 . WHERE THE NATIONAL COURT IS ABLE , USING THE CRITERIA OF EQUAL WORK AND EQUAL PAY , WITHOUT THE OPERATION OF COMMUNITY OR NATIONAL MEASURES , TO ESTABLISH THAT THE PAYMENT OF LOWER HOURLY RATES OF REMUNERATION FOR PART-TIME WORK THAN FOR FULL-TIME WORK REPRESENTS DISCRIMINATION BASED ON DIFFERENCE OF SEX THE PROVISIONS OF ARTICLE 119 OF THE TREATY APPLY DIRECTLY TO SUCH A SITUATION .