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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Allonby (Social policy) [2004] EUECJ C-256/01 (13 January 2004) URL: http://www.bailii.org/eu/cases/EUECJ/2004/C25601.html Cite as: [2004] ICR 1328, Case C-256/01, [2004] ECR I-00873, [2004] ECR I-873, [2004] IRLR 224, [2004] 1 CMLR 35, [2004] Pens LR 199, [2004] EUECJ C-256/01, [2004] EUECJ C-256/1 |
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JUDGMENT OF THE COURT
13 January 2004 (1)
(Principle of equal pay for men and women - Direct effect - Meaning of worker - Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by male lecturers who are employees, but under contract with a third company - Self-employed lecturers not eligible for membership of an occupational pension scheme)
In Case C-256/01,
REFERENCE to the Court under Article 234 EC by the Court of Appeal (England and Wales) (Civil Division) for a preliminary ruling in the proceedings pending before that court between
Debra Allonby
and
Accrington & Rossendale College,
Education Lecturing Services, trading as Protocol Professional, formerly Education Lecturing Services
Secretary of State for Education and Employment,
on the interpretation of Article 141 EC,
THE COURT,
composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann and J.N. Cunha Rodrigues (Presidents of Chambers), A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric (Rapporteur) and S. von Bahr, Judges,
Advocate General: L.A. Geelhoed,
Registrar: L. Hewlett, Principal Administrator,
after considering the written observations submitted on behalf of:
- Ms Allonby, by T. Gill, barrister, instructed by Michael Scott & Co., solicitors,
- Education Lecturing Services, trading as Protocol Professional, by D. Pannick QC and P. Nicholls, barrister, instructed by KLegal, solicitors,
- the United Kingdom Government, by G. Amodeo, acting as Agent, assisted by N. Paines QC and M. Hall, barrister,
- the German Government, by W.-D. Plessing and R. Stüwe, acting as Agents,
- the Commission of the European Communities, by J. Sack and N. Yerrel, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Ms Allonby, represented by T. Gill and R. Moretto, barrister, of Education Lecturing Services, trading as Protocol Professional, represented by Lord Lester of Herne Hill QC, of the United Kingdom Government, represented by P. Ormond, acting as Agent, assisted by N. Paines, and of the Commission, represented by N. Yerrel, at the hearing on 28 January 2003,
after hearing the Opinion of the Advocate General at the sitting on 2 April 2003,
gives the following
Legal background
Community law
For the purpose of this article, 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.
Member States shall take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal pay.
Member States shall, in accordance with their national circumstances and legal systems, take the measures necessary to ensure that the principle of equal pay is applied. They shall see that effective means are available to take care that this principle is observed.
Occupational social security schemes means schemes not governed by Directive 79/7/EEC whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.
Under the conditions laid down in the following provisions, the principle of equal treatment implies that there shall be no discrimination on the basis of sex, either directly or indirectly, by reference in particular to marital or family status, especially as regards:
- the scope of the schemes and the conditions of access to them;
- the obligation to contribute and the calculation of contributions;
...
Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, in particular by reference to marital or family status, for:
(a) determining the persons who may participate in an occupational scheme;
(b) fixing the compulsory or optional nature of participation in an occupational scheme;
...
Domestic law
Requirement of equal treatment for men and women in same employment
(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one.
(2) An equality clause is a provision which relates to terms (whether concerned with pay or not) of a contract under which a woman is employed (the woman's contract), and has the effect that
...
(c) where a woman is employed on work which, not being work in relation to which paragraph (a) or (b) above applies, is, in terms of the demands made on her (for instance under such headings as effort, skill and decision), of equal value to that of a man in the same employment -
(i) if (apart from the equality clause) any term of the woman's contract is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the woman's contract shall be treated as so modified as not to be less favourable, and
(ii) if (apart from the equality clause) at any time the woman's contract does not include a term corresponding to a term benefiting that man included in the contract under which he is employed, the woman's contract shall be treated as including such a term.
...
(6) Subject to the following subsections, for purposes of this section:
(a) employed means employed under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly;
(b) ...
(c) two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control or if both are companies of which a third person (directly or indirectly) has control, and men shall be treated as in the same employment with a woman if they are men employed by her employer or any associated employer at the same establishment or at establishments in Great Britain which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes.
The equal treatment rule
(1) An occupational pension scheme which does not contain an equal treatment rule shall be treated as including one.
(2) An equal treatment rule is a rule which relates to the terms on which -
(a) persons become members of the scheme, and
(b) members of the scheme are treated.
...
Discrimination against contract workers
(1) This section applies to any work for a person (the principal) which is available for doing by individuals (contract workers) who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal.
(2) It is unlawful for the principal, in relation to work to which this section applies, to discriminate against a woman who is a contract worker
(a) in the terms on which he allows her to do that work, or
(b) by not allowing her to do it or continue to do it, or
(c) in the way he affords her access to any benefits, facilities or services or by refusing or deliberately omitting to afford her access to them, or
(d) by subjecting her to any other detriment.
The main proceedings
- Ms Allonby and Mr Johnson undertake lecturing work of presumptively equal value at the College although not always on the same site;
- Mr Johnson is employed by the College as a lecturer and is paid by the College at a rate which the College sets;
- Ms Allonby is engaged by ELS on a self-employed basis. She works on specific assignments agreed by her with ELS, at the College or elsewhere. She has no contractual relationship with the College;
- The College agrees with ELS the fee which it will pay for each lecturer. ELS agrees with Ms Allonby the fee which she is to receive for each assignment and sets the conditions under which its lecturers are to work. The College has no direct control over ELS in those or other matters;
- The College and ELS employ both male and female staff.
- The TSS was set up by the Secretary of State under powers conferred by primary legislation.
- It is a condition of membership of the TSS that the member be an employee and be engaged as a teacher in a specified category of educational institution. The College is in one of these categories.
- No self-employed person is eligible to be a member of the TSS.
- The TSS provides old age pensions and other benefits calculated principally by reference to the duration of the member's employment and to a reference salary earned in employment to which the TSS relates, which need not have been the same employment throughout but must have been at eligible establishments.
- The rates of pay which determine the level of benefits under the TSS may differ between employers.
- The benefits payable under the TSS are funded by contributions from the members of the TSS and their employers.
- No lecturer engaged by ELS is engaged as an employee. In consequence, none is eligible for membership of the TSS.
The questions referred to the Court
1. Does Article 141 EC have direct effect so as to enable a woman to claim equal pay with a man in the circumstances of this case?
2. Does Article 141 EC have direct effect so as to entitle Ms Allonby to claim access to the pension scheme either (i) by comparing herself with Mr Johnson or (ii) by showing statistically that a considerably smaller proportion of female than of male teachers who are otherwise eligible to join the TSS can comply with the requirement of being employed under a contract of employment, and by establishing that the requirement is not objectively justified?
The first question
The second question
Part (a) of the second question
Part (b) of the second question
The first part of part (b) of the second question
- The concept of worker within the meaning of Article 141(1) EC
- The category of persons who may be included in the comparison
- Legal consequences
The second part of part (b) of the second question
Costs
85. The costs incurred by the United Kingdom and German Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Court of Appeal (England and Wales) (Civil Division) by order of 22 June 2001, hereby rules:
1. In circumstances such as those of the main proceedings, Article 141(1) EC must be interpreted as meaning that a woman whose contract of employment with an undertaking has not been renewed and who is immediately made available to her previous employer through another undertaking to provide the same services is not entitled to rely, vis-à-vis the intermediary undertaking, on the principle of equal pay, using as a basis for comparison the remuneration received for equal work or work of the same value by a man employed by the woman's previous employer.
2. Article 141(1) EC must be interpreted as meaning that a woman in circumstances such as those of the main proceedings is not entitled to rely on the principle of equal pay in order to secure entitlement to membership of an occupational pension scheme for teachers set up by State legislation of which only teachers with a contract of employment may become members, using as a basis for comparison the remuneration, including such a right of membership, received for equal work or work of the same value by a man employed by the woman's previous employer.
3. In the absence of any objective justification, the requirement, imposed by State legislation, of being employed under a contract of employment as a precondition for membership of a pension scheme for teachers is not applicable where it is shown that, among the teachers who are workers within the meaning of Article 141(1) EC and fulfil all the other conditions for membership, a much lower percentage of women than of men is able to fulfil that condition. The formal classification of a self-employed person under national law does not change the fact that a person must be classified as a worker within the meaning of that article if his independence is merely notional.
4. Article 141(1) EC must be interpreted as meaning that where State legislation is at issue, the applicability of that provision vis-à-vis an undertaking is not subject to the condition that the worker concerned can be compared with a worker of the other sex who is or has been employed by the same employer and who has received higher pay for equal work or work of equal value.
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Skouris
Gulmann
Puissochet
Colnericvon Bahr
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Delivered in open court in Luxembourg on 13 January 2004.
R. Grass V. Skouris
Registrar President
1: Language of the case: English.
