Voss v Land Berlin

Article 141 of the EC Treaty enshrines the principle of equal pay for men and women into law. In Voss v Land Berlin (IDS 847), the European Court of Justice (ECJ) said that part time workers were entitled to be paid overtime once they worked more than their normal working hours in the same way as full-timers if considerably more women than men are affected and the difference cannot be justified.

Basic facts

Ms Voss was contracted to work 23 hours per week as a part time teacher, compared to full time teachers who were contracted to work 26.5 hours. Between 11 January and 23 May 2000 she worked between four and six hours overtime per month.

However, German law stated that she would only be paid for the overtime if she worked more than five hours overtime a month at an hourly rate that was less than the standard rate. This disadvantaged Ms Voss because, once she had done her 23 contracted hours, she went onto the lower rate. Full time employees did not hit the lower rate until they had worked 26.5 hours.

Ms Voss claimed that her overtime rate should be calculated at the same hourly rate as full-time teachers. The German court asked the ECJ to decide whether it was against equal pay law to pay a part time worker doing overtime less than a full time worker for the same hours.

Relevant law

Article 141(1) and (2) of the EC Treaty (which applies to individuals in both the public and private sector) states that:

1 Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purposes 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.

Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.

Decision of ECJ

The ECJ said that to show whether German law was indirectly discriminatory contrary to Article 141, it had to establish whether:

  • part-time workers and full-time workers were being treated differently
    a considerably higher number of women than men were affected by that difference
    there were objective factors wholly unrelated to sex discrimination which could justify the difference in treatment

The ECJ said that it was clear that a part time teacher whose normal hours are 23 a week but who works overtime of 3.5 hours was being paid less for those 26.5 hours than a full time teacher for the same hours.

As a result it was satisfied that the German legislation gave rise to a difference in treatment that was detrimental to part time workers. This would be contrary to the principle of equal pay if considerably more women than men were affected and the difference could not be justified by objective factors. This had to be considered by the national court.