EU: A landmark decision by the European Court of Justice condemns some women to lower pay than men in the same job, writes Jamie Smyth, European Correspondent.
Firms can pay women less than men based on their length of service, even if they have taken time off to have children, Europe's top court has ruled.
In a landmark judgment that is a blow to advocates of equal pay, the European Court of Justice (ECJ) said that length of service was a legitimate criterion to award higher pay rates to certain workers.
It also found that employers do not have to justify on a case-by-case basis their pay structures based on the length of service, unless a worker provides evidence that raises serious doubts about a decision.
The court rejected a claim by 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.
She began her legal action in 2001 when she discovered that her male colleagues were paid several thousand pounds more for the same job.
An employment tribunal ruled in her favour but was overturned on appeal, and the case was sent to the ECJ.
In yesterday's judgment, the ECJ ruled that firms could continue to pay male staff more money if they had worked for a firm longer than female staff who had taken time off to bring up their children.
"Recourse to the criterion of the length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better," the court said in its ruling.
"There is no need to show that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better," it added.
Aware of the potentially significant effect a negative ruling would have had on European firms, 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.
In its judgment, the ECJ said a "temporal limitation" was not needed as its judgment supported the position advocated by both Ireland and Britain.
The ruling was criticised by several MEPS. Fine Gael MEP Mairead McGuinness said the ruling did not take account of the significant role women were playing in the workplace and at home in the family.
"While I can accept some of the legal arguments in this case, I think we have to remove the disincentives that exist for women to have children.
"In Ireland in particular, women are under huge pressure to enter the workforce and yet the fact is that women are the only people that can have children and have to take time off."
She said there was a need to recognise the huge efforts that women are making in modern Ireland.
Fianna Fáil MEP Brian Crowley said the principle of equal pay for equal work must be maintained but allowances must be made for people who take parental leave so that they too are statutorily entitled.
In its submission to the court, the Government said that a person's length of service should always be considered as a legitimate criterion for the determination of pay.
The Government also requested that if the court ruled in favour of Ms Cadman, the legal impact of the judgment should be delayed until a specific time in the future to prevent a flood of claims in cases that occurred prior to the judgment.