The European Court of Justice (ECJ) has decided in Elsner-Lakeberg v Land Nordrhein-Westfalen (IDS Brief 760) that having the same threshold for triggering additional pay for both part-time and full-time teachers could amount to indirect sex discrimination.

What was the basis of the claim?

The German legislation governing Ms Elsner's employment stated that civil servants have to work additional hours when the job requires it.

When teachers work more than three additional hours per month, but only if they work more than three, they are entitled to an additional payment for the work.

Ms Elsner was employed as a civil servant working part-time as a secondary school teacher. Full-time teachers at the school worked for 98 hours per month, whereas Ms Elsner worked only 60 hours.

In December 1999 she was told she had to work an extra two and a half hours, which she did. The trouble was that when she asked for payment for the work, she was told she was not eligible because the threshold for triggering an additional payment was an extra three hours per month.

What question was referred to the ECJ?

Not surprisingly, Ms Elsner did not accept this apparent difference in treatment. Her employers, on the other hand, said that she was being treated exactly the same way as a full-timer because everyone had to work the same additional hours to get the extra pay.

She therefore brought an equal pay claim in her national court, which referred the matter to the ECJ. The court was asked the following question:

Is national legislation which states that part-time and full-time teachers are only paid for additional hours when they work more than three per month compatible with Article 141 of the EC Treaty (which says that men and women should be paid the same) and the equal pay directive?

What did the ECJ decide?

The ECJ said that, although the payment system appeared to be equal in that both full-timers and part-timers had to work three extra hours per month, this threshold represented a proportionately bigger burden for part-timers than for full-time teachers. 
It calculated that three additional hours on the regular monthly schedule of a full-time teacher meant that he or she only had to work about three per cent more every month to trigger the payment. Part-timers, on the other hand, had to work about five per cent more.

The court concluded, therefore, that since the number of additional teaching hours was not reduced for part-time teachers in a manner proportionate to their working hours, they were being treated differently compared to full-time teachers.

It would therefore be for the national court to work out whether this difference in treatment affected more women than men and, if it did, whether it could be justified by the employer and was necessary to achieve a particular objective.

Comment

It is well established law that employers can pay part-timers at normal basic rates (and not overtime rates) when they work hours over and above their normal part-time hours. This is the case even if a full-timer working over her normal hours would benefit from a higher overtime rate.

The situation facing Ms Elsner was different, however. She was not offered any pay for her additional hours of work, unlike the full-timers.

The Elsner decision will not therefore affect the common practice of paying part-timers at basic rates for hours worked over and above their norm. It will however be likely to affect any pay system which does not offer pay to people working below a certain limit of hours, unless that limit is adjusted proportionately for part-timers.