Gerster v Freistaat Bayern ECJ 2/10/97
Case C-1/95
Kording v Senator fur Finanzen ECJ 2/10/97
Case C-100/95
Falkirk Council & Others v Whyte and Others
[1997] IRLR 560
The European Court of Justice has once again considered indirect discrimination and part time workers rights in two important cases. In so doing they have called into question a fairly wide spread practice in relation to part timers and have reiterated the stringent standard of the objective justification test.
And in the UK the Employment Appeal Tribunal has approved a more liberal interpretation of our own indirect discrimination test under Section 1(1)(b) of the Sex Discrimination Act 1975 and the meaning of the application of a requirement or condition.
Mrs Gerster works for the Bavarian Civil Service in finance administration. Civil Service Regulations set out the rules relating to promotion which are based on merit plus length of service.
Candidates need a minimum period of service to be eligible for promotion: once that is acquired their merit can be assessed. However different rules apply for part timers.
Periods of employment of fewer than half of the normal working hours for the post in question are not taken into account for the purpose of calculating length of service; periods during which the hours worked are at least half of normal working hours count at a rate of two thirds; and periods worked in excess of two thirds of normal working hours are deemed equivalent to periods of full time employment.
It was agreed by the Bavarian Civil Service that the provision treated part time employees less favourably than full time workers as part timers accrued length of service more slowly and therefore opportunities for promotion took longer. Mrs Gerster was affected, being turned down for promotion because she did not have enough qualifying service based on her part time hours.
Eighty per cent of the part time workers in Mrs Gerster's department were women and the ECJ upheld a complaint that the practice could be in breach of the Equal Treatment Directive 76/207. The Equal Treatment Directive asserts that "the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly". The Regulations indirectly discriminated against women, the ECJ held and would be unlawful unless they could be objectively justified.
The practice was an equal treatment issue, not an equal pay issue- and therefore not covered by Article 119 of the Treaty of Rome or the Equal Pay Directive. The judgment analyses the dividing line between pay and treatment issues. Where a Civil Servant is placed on the list of candidates eligible for promotion the progression to a higher grade and therefore more pay was not a right but a 'mere possibility', as actual promotion depended on a number of factors. The issue was primarily access to career advancement and only indirectly linked to the pay that Mrs Gerster would have got had she been promoted.
Contrast the Gerster situation with the earlier case of Nimz 1991 [IRLR] 222 in the ECJ. In Mrs Nimz's case full time employees were upgraded after six years, whilst part timers had to wait for 12 years, but with the length of service promotion was 'practically automatic' and therefore directly concerned pay rather than access to opportunities. Mrs Nimz's case succeded as an equal pay case.
The Gerster case is a helpful reminder that it is usually best to put a case on both grounds - equal pay and equal treatment to avoid a gap and prevent any later time limit problems where the position is at all unclear.
As usual the ECJ have left the consideration of objective justification to the national courts. But in restating the objective justification test they have reiterated the need for hard evidence from the employer.
In this case the Bavarian Civil Service could not identify objective criteria unrelated to any discrimination on the basis of an alleged special link between length of service and acquisition of a certain level of knowledge or experience. They were making generalisations concerning certain categories of worker yet objectivity of a service requirement will depend on all the circumstances in each individual case.
Different employees will perform differently and the extent to which length of service and experience will enable a worker to improve work performance will vary from employee to employee.
The objective justification test applied to this case would mean the employer will need to prove that part time employees are generally slower than full time ones in acquiring job related abilities and skills, and that the extra service requirement reflected a legitimate policy aim; was an appropriate means of achieving that aim and was necessary in achieving it. The national court would have to find a special link between hours of service and acquisition of a certain level of knowledge or experience for the practice to be objectively justified.In the second part time workers case considered by the ECJ, Mrs Kording was seeking to challenge a requirement of full time service for 15 years in order to practice as a tax advisor without having to take the qualifying examination.
Exemptions from the examination are granted automatically to case officers in the executive grade of the revenue administration with 15 years' full time service. Part time service was calculated on a pro rata basis extending the length of service requirement.
The ECJ stated that the pro rata reduction of Mrs Kording's service could be discriminatory. 92.4% of part time executive grade officers in the revenue administration were female and so the national measure worked to the disadvantage of far more women than men. It would be unlawful unless it could be objectively justified and any alleged link between hours of work and levels of experience must be proved, and not assumed.
Again the case has been remitted to the German national courts for consideration.
The United Kingdom test for indirect discrimination in Section 1 (1)(b) of the Sex Discrimination Act 1975 is far more prescriptive than the general wording of the Equal Treatment Directive. A particular problem has been the need to prove that an employer has applied a condition or requirement in order to argue indirect discrimination.
This was expressed as 'an absolute bar' in Perera v The Civil Service Commission [1983] IRLR 186 and this relatively early Court of Appeal judgment has been followed ever since. It has meant that where practices have a discriminatory outcome employers can escape liability if the practice stops short of a requirement or condition in the sense of an absolute must.
But that may all now have changed following the case of Falkirk Council v Whyte & Others where the EAT has upheld an Industrial Tribunal's liberal interpretation of the phrase. A factor in the selection process for a managerial post at Cortonvale Prison discriminated against women even though it was only stated to be 'desirable'.
The EAT ruled that it was clear in practice in the way in which the interview panel operated that the indirectly discriminatory factor was decisive in the selection process.
It therefore came within the definition of requirement or condition applying a liberal interpretation under the wide approach of community law to sex discrimination.
We shall have to wait and see whether ITs and the higher courts will adopt this more common sense approach, or whether Falkirk v Whyte will be a case that turns on the particular findings of fact by the IT. In the meantime it is a welcome advance which helps to marry up the Equal Treatment Directive with the Sex Discrimination Act.