But the
Court's complicated ruling says that in some cases discrimination
based on experience would not be permitted without a detailed
justification from employers.
The ruling came in the case of British health inspector
Bernadette Cadman. She said that her employer paid male colleagues
more than her for the same job because they had served longer. She
said that the pay difference was up to £9,000.
Cadman sued the Health and Safety Executive and won her case at
the Employment Tribunal. The HSE appealed the decision and referred
the case to the ECJ on specific points of law. That court has ruled
that in most cases employers can discriminate on the basis of
experience.
"As a general rule, recourse to the criterion of length of
service is appropriate to attain the legitimate objective of
rewarding experience acquired which enables the worker to perform
his duties better, the employer does not have to establish
specifically that recourse to that criterion is appropriate to
attain that objective as regards a particular job, unless the
worker provides evidence capable of raising serious doubts in that
regard," said its judgment.
It also said that an employer does not in general have to give a
detailed explanation of exactly what experience is being rewarded
by higher pay. "There is no need to show that an individual worker
has acquired experience during the relevant period which has
enabled him to perform his duties better," said the judgment.
The Court did say, though, that there may be some situations in
which an employer must provide more information about pay
discrimination between employees on the basis of length of
service.
"That is so, in particular, where the worker provides evidence
capable of giving rise to serious doubts as to whether recourse to
the criterion of length of service is, in the circumstances,
appropriate," said its judgment. "It is in such circumstances for
the employer to prove that length of service goes hand in hand with
experience and that experience enables the worker to perform his
duties better is true as regards the job in question."
Cadman had argued that the practice discriminates on the basis
of gender since women are more likely to have shorter service than
men because they are more likely to take time out from work to have
and raise children.
The ruling was hailed in some quarters as a victory for Cadman
because it said that explanations should be provided in some cases,
but most observers disagreed with that interpretation.
Cadman told reporters that the case was "not about winning
compensation, but about recognition that women should not be paid
less than their male counterparts".
