WOMEN with similar qualifications to men and doing work of similar value should not be discriminated against simply because their pay agreement was negotiated separately, according to a ruling by the EU Court of Justice in Luxembourg. Nurses could be among the groups most likely to benefit.
Traditionally, women workers who claim they are being paid lower wages have had to find male workers covered by the same agreement. Now, however, the European Court has decided - that a woman worker may be considered a victim of sex discrimination if she works in an "overwhelmingly female profession" whose members "are appreciably less well paid than members of comparable professions in which, at an equivalent level, there are more men than women".
The chief executive of the Equality Employment Agency, Ms Carmel Foley, has given a cautious welcome to the ruling. However, she adds that its full scope will not be clear until a case referred back to a UK industrial tribunal by the European Court is concluded.
The assistant general secretary of the Irish Nurses' Organisation Ms Lenore Mrkwicka, said nurses had fallen behind comparable grades in the health services. "It is because of occupational segregation and because nurses are predominantly female."
The ruling arises from a case brought in 1986 by Dr Pamela Enderby, a speech therapist against her employer, the Frenchlay Health Authority (FHA), in Britain. It was referred to the European Court of Justice for a ruling by the Court of Appeal of England and Wales in 1991, but the decision was issued only late last year.
Dr Enderby claimed that her salary as a senior speech therapist was substantially lower than that of a principal clinical psychologist or principal pharmacist, even though people employed in all three groups by the FHA would have had training to a similar standard.
In 1986, when the case was brought, Dr Enderby was earning £10,106 a year, while the psychologists were earning £12,527 and the pharmacists £14,106.
When the UK industrial tribunal heard the case, it decided the differences in pay were the result of professional and other structures specific to each worker group. In particular, it ruled that the existence of separate collective bargaining arrangements ruled out any possibility of gender discrimination against speech therapists.
The case was referred to the Court of Justice under Article 177 of the Treaty of Rome. It was then heard under Article 119, which deals with equal pay.
The court has ruled that where it finds a work measure 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".
Besides nursing, women predominate in part time employment, education, health services, financial and business services and the retail trade. In all of these sectors there would be many clear cut cases where pay differentials would be neither short term nor fortuitous.
One problem that could arise for unions is over pay differentials. Even in nursing, psychiatric nurses - mainly men - have traditionally earned more than general nurses.