Instantie

Hof van Justitie EG

Samenvatting

Enderby werkt als ‘speech therapist’, een vrouwenberoep, en eist
gelijk loon in vergelijking met het mannenberoep van ‘pharmacist’. Het
loonverschil wordt dezes verklaard door het feit dat de loonniveau’s onder
twee verschillende cao’s zijn vastgesteld. Het Hof beslist dat als er een
significant loonverschil is tussen een vrouwen- en mannenberoep, en de
functies in kwestie van gelijke waarde zijn, de bewijslast omkeert. Dat
de hoogte van de lonen onder twee verschillende cao’s tot stand zijn
gekomen, vormt geen objectieve rechtvaardiging. De nationale rechter dient
te bepalen, zonodig onder toepassing van het proportionaliteitsbeginsel,
of een hoger loon om kandidaten te trekken waaraan een tekort is op de
arbeidsmarkt, een voldoende objectieve economische rechtvaardiging vormt.

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(…) Judgment

1. By order of 30 October 1991, received by the Court of Justice in 17
April 1992, the Court of Appeal of England and Wales, pursuant to Article
177 of the EEC Treaty, referred for a preliminary ruling questions
concerning the interpretation of Article 119 of the Treaty, enshrining the
principle of equal pay for men and women.

2. Those questions were referred in the context of proceedings brought by
Dr Pamela Enderby against the Frenchay Health Authority (hereinafter
‘FHA’) and the Secretary of State for Health concerning the difference in
pay between two jobs within the National Health Service (hereinafter
‘NHS’).

3. The appellant in the main proceedings, who is employed as a speech
therapist by the FHA, considers that she is a victim of sex discrimination
due to the fact that at her level of seniority within the NHS (Chief III)
members of her profession, which is overwhelmingly a female profession,
are appreciably less well paid than members of comparable professions in
which, at an equivalent professional level, there are more men than women.
In 1986, she brought proceedings against her employer before an industrial
tribunal, claiming that her annual pay was only £ 10 106 while that of a
principal clinical psychologist and of a Grade III principal pharmacist,
jobs which were of equal value to hers, was £ 12 527 and £ 14 106
respectively.

4. Dr Enderby’s claim was dismissed by the industrial tribunal and then,
on appeal, by the Employment Appeal Tribunal. The industrial tribunal
considered that the differences in pay were the result of structures
specific to each profession, and in particular the separate collective
bargaining arrangements, which were not discriminatory. The appeal
tribunal also considered that the differences were not attributable to
discrimination. It held further that it had been established that the
state of the employment market played some part in the difference in pay
between speech therapists and pharmacists and that that was enough to
justify the whole of the difference between those two professions.

5. On appeal, the Court of Justice, considering that the outcome of the
proceedings depended on the interpretation of Article 119 of the Treaty,
decided to refer questions to the Court of Justice for a preliminary
ruling. In the statement of facts in its order, the Court of Appeal
defined the job of principal speech therapist as ‘job A’ and that of
principal pharmacist as ‘job B’, and assumed for the purpose of the
present proceedings that those two different jobs were of equal value. It
then asked the following questions:

‘Question 1

Does the principle of equal pay enshrined in Article 119 of the Treaty of
Rome require the employer to justify objectively the difference in pay
between job A and job B?

Question 2

If the answer to question 1 is in the affirmative, can the employer rely
as sufficient justification for the difference in pay upon the fact that
the pay of jobs A and B respectively has been determined by different
collective bargaining processes which (considered separately) do not
discriminate on grounds of sex and do not operate so as to disadvantage
women because of their sex?

Question 3

If the employer is able to establish that at times there are serious
shortages of suitable candidates for job B and that he pays the higher
remuneration to holders of job B, so as to attract them to job B, but it
can also be established that only part of the difference in pay between
job B and job A is due to the need to attract suitable candidates to job
B

(a) is the whole of the differences of pay objectively justified or

(b) is that part but only that part of the difference which is due to the
need to attract suitable candidates to job B objectively justified or

(c) must the employer equalize the pay of jobs A and B on the ground that
he had failed to show that the whole of the difference is objectively
justified?’

(…)

The question referred

13. It is normally for the person alleging facts in support of a claim to
adduce proof of such facts. Thus, in principle, the burden of proving the
existence of sex discrimination as to pay lies with the worker who,
believing himself to be the victim of such discrimination, brings legal
proceedings against his employer with a view to removing the
discrimination.

14. However, it is clear from the case-law of the Court that the onus may
shift when that is necessary to avoid depriving workers who appear to be
victims of discrimination of any effective means of enforcing the
principle of equal pay. Accordingly, when a measure distinguishing between
employees on the basis of their hours of work has in practice an adverse
impact on substantially more members of one or other sex, that measure
must be regarded as contrary to the objective pursued by Article 119 of
the Treaty, unless the employer shows that it is based on objectively
justified factors unrelated to any discrimination on grounds of sex
(judgements in Case 170/84 Bilka-Kaufhaus [1986] ECR 1607, at paragraph
31, Case C-33/89 Kowalska [1990] ECRI-2591, at paragraph 16, and C-184/89
Nimz [1991] ECR I-297, at paragraph 15). Similarly, where an undertaking
applies a system of pay which is wholly lacking in transparency, it is for
the employer to prove that his practice in the matter of wages is not
discriminatory, if a female worker establishes, in relation to a
relatively large number of employees, that the average pay for women is
less than that for men (judgment in Case 109/88 Danfoss [1989] ECR 3199,
at paragraph 16).

15. In this case, as both the FHA and the United Kingdom observe, the
circumstances are not exactly the same as in the cases just mentioned.
First, it is not a question of de facto discrimination arising from a
particular sort of arrangement such as may apply, for example, in the case
of part-time workers. Secondly, there can be no complaint that the
employer has applied a system of pay wholly lacking in transparency since
the rates of pay of NHS speech therapists and pharmacists are decided by
regular collective bargaining processes in which there is no evidence of
discrimination as regards either of those two professions.

16. However, if the pay of speech therapists is significantly lower than
that of pharmacists and if the former are almost exclusively women while
the latter are predominantly men, there is a prima facie case of sex
discrimination, at least where the two jobs in question are of equal value
and the statistics describing that situation are valid.

17. It is for the national court to assess whether it may take into
account those statistics, that is to say, whether they cover enough
individuals, whether they illustrate purely fortuitous or short-term
phenomena, and whether, in general, they appear to be significant.

18. Where there is a prima facie case of discrimination, it is for the
employer to show that there are objective reasons for the difference in
pay. Workers would be unable to enforce the principle of equal pay before
national courts if evidence of a prima facie case of discrimination did
not shift to the employer the onus of showing that the pay differential
is not in fact discriminatory (see, by analogy, the judgment in Danfoss,
cited above, at paragraph 13).

19. In these circumstances, the answer to the first question is that,
where significant statistics disclose an appreciable difference in pay
between two jobs of equal value, one of which is carried out almost
exclusively by women and the other predominantly by men, Article 119 of
the Treaty requires the employer to show that that difference is based on
objectively justified factors unrelated to any discrimination on grounds
of sex.

20. In its second question the Court of Appeal wishes to know whether the
employer can rely as sufficient justification for the difference in pay
upon the fact that the rates of pay of the jobs in question were decided
by collective bargaining processes which, although carried out by the same
parties, are distinct and which, considered separately, have no
discriminatory effect.

21. As is clear from Article 4 of Council Directive 75/117/EEC of 10
February 1975 on the approximation on the laws of the Member States
relating to the application of the principle of equal pay for men and
women (Official Journal 1975 L 45, p. 19), collective agreements, like
laws, regulations or administrative provisions, must observe the principle
enshrined in Article 119 of the Treaty.

22. The fact that the rates of pay at issue are decided by collective
bargaining processes conducted separately for each of the two professional
groups concerned, without any discriminatory effect within each group,
does not preclude a finding of prima facie discrimination where the
results of those processes show that two groups with the same employer and
the same trade union are treated differently. If the employer could rely
on the absence of discrimination within each of the collective bargaining
processes taken separately as sufficient justification for the difference
in pay, he could, as the German Government pointed out, easily circumvent
the principle of equal pay by using separate bargaining processes.

23. Accordingly, the answer to the second question is that the fact that
the respective rates of pay of two jobs of equal value, one carried out
almost exclusively by women and the other predominantly by men, were
arrived at by collective bargaining processes which, although carried out
by the same parties, are distinct, and, taken separately, have in
themselves no discriminatory effect, is not sufficient objective
justification for the difference in pay between those two jobs.

The third question

24. In its third question, the Court of Appeal wishes to know to what
extent – wholly, in part of not at all – the fact that part of the
difference in pay is attributable to a shortage of candidates for one job
and to the need to attract them by higher salaries can objectively justify
that pay differential.

25. The Court has consistently held that it is for the national court,
which has sole jurisdiction to make findings of fact, to determinate
whether and to what extent the grounds put forward by an employer to
explain the adoption of a pay practice which applies independently of a
worker’s sex but in fact affects more women than men may be regarded as
objectively justified economic grounds (judgments in Case 170/84
Bilka-Kaufhaus, cited above, at paragraph 36 and Case C-184/89 Nimz, cited
above, at paragraph 14). Those grounds may include, if they can be
attributed to the needs and objectives of the undertaking, different
criteria such as a worker’s flexibility or adaptability to hours and
places of work, his training or his length of service (judgment in Case
109/88 Danfoss, cited above, at paragraphs 22 to 24).

26. The state of the employment market, which may lead an employer to
increase the pay of a particular job in order to attract candidates, may
constitute an objectively justified economic ground within the meaning of
the case-law cited above. How it is to be applied in the circumstances of
each case depends on the facts and so falls within the jurisdiction of the
national court.

27. If, as the question referred seems to suggest, the national court has
been able to determine precisely what proportion of the increase in pay
is attributable to market forces, it must necessarily accept that the pay
differential is objectively justified to the extent of that proportion.
When national authorities have to apply Community law, they must apply the
principle of proportionality.

28. If that is not the case, it is for the national court to assess
whether the role of market forces in determining the rate of pay was
sufficiently significant to provide objective justification for part or
all of the difference.

29. The answer to the third question therefore is that it is for the
national court to determine, if necessary by applying the principle of
proportionality, whether and to what extent the shortage of candidates for
a job and the need to attract them by higher pay constitutes an
objectively justified economic ground for the difference in pay between
the jobs in question.

(…)

The Court,

in answer to the questions referred to it by the Court of Appeal of
England and Wales by order of 30 October 1991, hereby rules:

1. Where significant statistics disclose an appreciable difference in pay
between two jobs of equal value, one of which is carried out almost
exclusively by women and the other predominantly by men, Article 199 of
the Treaty requires the employer to show that that difference is based on
objectively justified factors unrelated to any discrimination on grounds
of sex.

2. The fact that the respective rates of pay of two jobs of equal value,
one carried out almost exclusively by women and the other predominantly
by men, were arrived at by collective bargaining processes which, although
carried out by the same parties, are distinct, and, taken separately, have
in themselves no discriminatory effect, is not sufficient objective
justification for the difference in pay between those two jobs.

3. It is for the national court to determine, if necessary by applying the
principle of proportionality, whether and to what extent the shortage of
candidates for a job and the need to attract them by higher pay
constitutes an objectively justified economic ground for the difference
in pay between the jobs in question.

Rechters

Mrs. Due, Mancini, Moitinho de Almeida, Edward, Joliet,Schockweiler, Grevisse, Zuleeg, Murray.