EU: Firms can continue to pay staff different wage rates for doing the same job based on their length of service, a top adviser to the European Court of Justice (ECJ) said yesterday.
In a legal opinion on a case with important implications for advocates of equal rights for men and women, advocate general Poiares Maduro said length of service can be a factor in determining pay.
However, he said firms must be able to show how the different pay rates for employees can be justified in their pay structure for staff.
The opinion involves the case of British health inspector Bernadette Cadman who said her employer unjustifiably paid her male colleagues on the same grade more only because they had worked more years.
Ms Cadman argued length of service often depended on domestic circumstances such as pregnancy and that employers must provide special justification for paying men more than women when they hold the same post.
She said the actions of her employers, the Health and Safety Executive, meant she was a victim of indirect discrimination- where a neutral provision in fact works to the disadvantage of women.
The ECJ adviser said employers could use length of service to help set pay levels in a way that had a different impact on male and female employees. However, they must demonstrate that this takes business needs into account and is applied proportionately to minimise its impact on women.
The advocate general's opinion is followed in 80 per cent of cases by the ECJ.
Aware of the potentially significant effect the ruling could have on European companies, several EU states, including Ireland, made legal submissions to the court. In its submission, the Government asked the court to place a "temporal limitation" on the judgment. This would delay its legal impact until a specific time in the future and would prevent a flood of claims in cases that occurred prior to the judgment.
The advocate general supports the case made by Ireland and Britain that the judgment should not open the way to a slew of claims of "indirect discrimination" to cover the period prior to the date of the court's judgment.
A decision of the full court is expected sometime in the next few months.