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EU Pay Case Opens Legal Door on Wage Gap

Monday, January 15, 2007

A U.K. labor union plans to bring a barrage of cases that will test the significance for female workers of a recent European Court of Justice decision. Advocates hope it will ease the penalty for taking time out of the paid work force.

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Emma Hawksworth

(WOMENSENEWS)--A labor union based in the United Kingdom is preparing over 50 legal cases to test the influence of a recent European Court of Justice decision that has a potentially major significance for working women.

The cases, which were amassed by labor union Prospect before the court's decision, will be brought to various U.K. Employment Tribunals, the country's judicial bodies that resolve employment disputes.

"We are ready for that challenge," said Paul Noon, general secretary of Prospect. "This case is a wake-up call, particularly for public sector employers, that additional experience does not lead to better performance indefinitely or in every case."

The decision by the Luxembourg-based court, which ensures law is uniformly interpreted throughout the European Union, was made in the case of Prospect union member Bernadette Cadman, a 42-year-old inspector for the Health and Safety Executive, an authority that works with local governments to enforce health and safety regulations in Great Britain.

Reached in October, the decision allows employees in the European Union to challenge employers when a shorter length of service justifies their lower salaries.

Prospect, which covered Cadman's legal expenses, and the Equal Opportunities Commission in Britain hail it as a potential legal breakthrough for women in the European Union, who, on average, earn 15 percent less than men for every hour worked, according to the European Commission's 2006 gender equality report.

"When service-related pay is analyzed, women are often clustered at the lower parts of the pay band," Noon said in a press release at the time of the decision. "This is because statistically women on average have shorter service, often due to children or other care responsibilities. The increase of women entrants to traditionally male-dominated professions also raised questions over seniority-based pay."


Muted Praise

But Leena Linnainmaa, president of the Brussels-based European Women Lawyer's Association, says the ruling may be too tightly worded to benefit many women. "I certainly don't consider this a victory," she said.

In its decision, the court said that if an employee "provides evidence that is capable of raising serious doubts," the onus is on the employer to justify its length-of-service pay scheme.

In a phone interview from her Helsinki office, Linnainmaa said it could be difficult for women to prove "serious doubts" and that will deter them from taking their cases to court. "I feel that this case shows that these cases are not easy to win."

Joanna McMinn, director of the Dublin-based National Women's Council of Ireland, noted that the decision still places the burden of challenging pay discrimination on the employee, an action that many women won't pursue for risk of being viewed as a "trouble maker."

"What a lot of women have said to us is they wouldn't bother and don't bother," McMinn said. "They just see this as yet another fence put up for them, and if you have children, you might as well give up the notion of promotion and so on and just settle for a life that is not ambitious in both career and family."


Pay Scales Unfair

Prospect argued that pay scales that apply to work spans of 12 to 15 years are unfair to working mothers, as well as undermine the Equal Pay Act and sex discrimination law.

In a recent U.K. Labor Force survey, 55 percent of female employees had been continuously employed for fewer than five years by their current employer, compared to 51 percent of their male counterparts. Thirty-one percent of male employees and 27 percent of female employees had been continuously employed with their current employer for 10 years and more.

Employed in what some describe as a predominately male field, Cadman worked her way up from a trainee in 1990 to a principal inspector of factories in 1996. But five years after her promotion, she discovered she earned between $7,750 and $17,500--or 11 and 25 percent--less than her male colleagues who worked the same job but had worked between one and 16 years longer than her in the same position.

Emma Hawksworth, a partner at Russell, Jones and Walker, which is representing Cadman, said her client--who is still employed with the Health and Safety Executive and had worked at the authority for 12 years at the time the case was filed--had a shorter service in her role as inspector "purely because she had come into the job later than the men had, because the role was traditionally very male, and women came in later."

In 1989 the European Court of Justice ruled that an employer does not need to justify its choice to use length of service as a reason to pay employees differently, which had the effect of equating longer tenure with better job performance.


No Question of Fairness

"There was no question of whether that was fair," Hawksworth told Women's eNews. "That was simply the end of the story: Length-of-service criteria could not be challenged, it seemed."

"What we've got now is a door that is at least ajar or opened partly," Hawksworth said. "And it's clear that if the length-of-service criteria in a pay scheme is having an adverse effect on women, then the employer and the employee can raise what the European Court of Justice refers to as 'serious doubts,' and the employers will have to explain themselves."

The European Commission's gender equality report last year showed that the labor market is segregated, both by sectors and by occupations, and becoming more so. In the European Union, for instance, more than 4 in 10 women are employed in public administration, education, health or other social-service activities. Those fields, by contrast, employ fewer than 2 in 10 men.

While chalking up a victory in Cadman's case, Prospect did not gain its full objective, which was to have the court rule that pay scales longer than five years were discriminatory and unlawful.

"Unions were seeking a knock-out blow to unequal pay from the European Court of Justice," said Dianah Worman, diversity advisor for the Chartered Institute of Personnel and Development in London, a professional body for management and human resources. "They haven't got that, but they landed a punch, and could still win many cases on points."

Upon the court's decision, Worman sent members of the Chartered Institute a press release saying that those employers "who become complacent on the back of this complex ruling from the European Court of Justice could easily wind up writing big checks to employees to show that they are not discriminating, not on employees to prove that they are being discriminated against."

Cadman's case will go back to the Court of Appeals and then to the Employment Tribunal, Hawksworth said. After a decision by the European Court of Justice, the case "sort of makes its way all the way back down." If the ultimate court decision sides with Cadman, she could claim up to six years back pay from the date her claim was lodged.

Hawksworth expects that the court will hear the case early this year, but no date has been set.

Mindy Kay Bricker is a freelance journalist in Prague, Czech Republic.

Women's eNews welcomes your comments. E-mail us at editors@womensenews.org.

For more information:

European Commission's 2006 Report on Equality Between Women and Men
[Adobe PDF format]:
http://ec.europa.eu/employment_social/publications/2006/keaj06001_en.pdf

Equal Opportunities Commission:
http://www.eoc.org.uk/

Prospect:
http://www.prospect.org.uk/

Note: Women's eNews is not responsible for the content of external Internet sites and the contents of Web pages we link to may change without notice.



 
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