Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud
The law states that, “in respect of employment conditions”, employers must not treat fixed-term workers less favourably than permanent staff, unless they can objectively justify it. In Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud (2007, IRLR 911), the European Court of Justice (ECJ) said that “employment conditions” include length of service allowances.
Basic facts
Ms Del Cerro Alonso worked as a temporary administrative assistant in various hospitals in the Basque country from February 1990 until June 2004, when she was taken on as a permanent member of staff. Shortly afterwards, her employer agreed to recognise 12 years of her service by awarding her four three-yearly allowances, effective from 1 July 2004.
A few months later, she asked for payment of a three yearly allowance which was due in the year before she became permanent. The hospital said that she was not entitled to it because domestic law stated she had to be a permanent member of staff. As she was not given permanent status until 1 July 2004, she could only benefit from that date. She claimed that refusal to grant her a length of service benefit discriminated against her as a fixed-term worker.
Referral to ECJ
The Spanish court was unsure of a number of points which it referred to the ECJ for clarification, as follows:
- Does less favourable treatment in “employment conditions” under the fixed-term workers directive include financial conditions?
- If so, can Spanish employers rely on domestic law (which provides that fixed term employees are not entitled to the same length of service allowance granted to permanent workers) to argue objective justification?
- Can collective agreements provide adequate objective justification grounds for not granting the length of service allowance to temporary staff?
Framework agreement
Clause 4(1) of the framework agreement of the 1999 Fixed-Term Work Directive states:
“In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.”
ECJ decision
The ECJ noted that although Article 137 of the EU Treaty allows the EU to lay down minimum requirements in directives relating to working conditions, this did not extend to “pay”.
The ECJ did not accept, however, that the exception to pay in Article 137 prevented a fixed term worker from seeking the benefit of a condition of employment only provided to permanent workers, even though that would lead to the payment of a pay differential. The ECJ considered that the exception must be interpreted strictly as applying to fixing the level of wages by the social partners at a national level, and that it “cannot be extended to any question involving any sort of link with pay.”
Therefore in answer to question one, the ECJ concluded that the reference to “employment conditions” in clause 4(1) must be interpreted as meaning that “it can act as a basis for a claim which seeks the grant to a fixed-term worker of a length-of-service allowance which is reserved under national law solely to permanent staff.”
In answer to the second and third questions, the Court said that clause 4(1) must be interpreted as meaning that employers cannot justify a difference in treatment between fixed-term workers and permanent workers, on the basis that it is provided for by legislation or by a collective agreement.