The European network of legal experts in gender equality and non-discrimination has released a new publication highlighting equal pay cases and good practice linked to the national level.
Equal Pay
According to Article 157 of the Treaty on the Functioning of the EU (TFEU) the EU Member States have to ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. Here, pay means ‘the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.’ The concept of pay includes not only basic pay, but also, for example, overtime supplements, special bonuses paid by the employer, travel facilities, compensation for attending training courses and training facilities, termination payments in case of dismissal and occupational pensions.
The principle of equal pay is further elaborated in Recast Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, in particular in Article 4.8 This Article stipulates: ‘For the same work or for work to which equal value is attributed, direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated. In particular, where a job classification system is used for determining pay, it shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex.’ Since the 1970s, the Court of Justice of the EU (CJEU) has in numerous judgments interpreted these provisions, in its answers to preliminary questions of national courts. The principle of equal pay between men and women is at the core of the EU gender equality legislation and in relation to pay, both unlawful direct and indirect sex discrimination are prohibited.
In 2013, the European Commission published a report to the Council and the European Parliament on the application of Directive 2006/54.10 In this report, specific attention is paid to the definition of pay and the application of the equal pay provisions in practice at national level in the EU Member States. In a Commission Staff Working Document, accompanying this report, additional information on pay issues is provided in four annexes. Annex 1 addresses issues related to gender-neutral job evaluations and classifications schemes. In Annex 2, the relevant case law of the Court of Justice of the EU (CJEU) and its predecessor the European Court of Justice (ECJ) is discussed. Some (landmark) cases of national courts are briefly described in Annex 3. Finally, Annex 4 provides some examples of good practices on equal pay at national level.
National Cases & Good Practices on Equal Pay
This report is an update of the information provided in Annex 3 and Annex 4 respectively, on national cases and good practices on equal pay between women and men in 31 countries. The scope of the report is the EU-28 member states as well as the three EEA countries: Iceland, Norway and Liechtenstein. The report consists of two main parts: national cases are described in Section 2 and Section 3 provides examples of good practices at national level.
Section 2 does not only provide information on court cases in a chronological order (Section 2.1), but also on some decisions of other bodies, such as equality bodies (Section 2.2). They include cases from equality bodies in Bulgaria, Denmark, Malta and the Netherlands. The cases described provide some good illustration of the national case law on equal pay, even if the list of cases is not exhaustive for each country. The cases are grouped by theme – where the main theme has been decisive – and by country, in alphabetical order of the official country codes. However, the cases often concern various issues, for example the concept of pay, indirect sex discrimination and sanctions.
In Section 3.1, examples of good practices at national level are described for each country. In addition, a comparative analysis is offered in Section 3.2, including some assessments of the practices by the independent national gender experts of the European network of legal experts in gender equality and non-discrimination.
Finally, some conclusions wrap up this report. The cut-off date of this report is 1 September 2018. Read the publication on the website of the European Network of Legal Experts.