The burden will be on employees to provide evidence that their cases are exceptions to the general rule, writes Michelle Ní Longáin

The European Court of Justice (ECJ) said this week that its judgment in a case on equal pay for men and women was simply a clarification of existing case law.

Bernadette Cadman, a health and safety inspector with the Health and Safety Executive in the UK, had brought equal pay proceedings against her employer.

The central issue in the case was whether or not employers can use length of service as a factor in pay for employees.

Cadman is paid significantly less than her male colleagues who are at the same grade. Her male colleagues have longer service than her, however.

Cadman brought her case on the basis of alleged indirect discrimination in pay between men and women.

Indirect discrimination on pay is defined in EU and Irish law as where an apparently neutral provision puts people of a particular gender at a disadvantage in respect of pay compared with other employees of their employer, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The Irish Labour Court has explained this test as meaning that the provision must be essential to the employer's business, the benefit to the employer must be balanced against the detriment to the employee and the employer must show that there was no other less discriminatory way of achieving its aim.

In the Cadman case, the ECJ has said that the legitimate aim is rewarding experience, enabling a worker to perform his duties better.

In this case, the ECJ found that the practice of service-related pay puts women at a particular disadvantage in respect of pay compared with other employees, but that the general rule is that the provision is justified, unless an employee provides evidence raising serious doubts about the application of that justification to their particular job.

The ECJ described its ruling as simply a clarification of the case law in the field. Despite this, there have been several interpretations of the judgment, perhaps because ECJ case law over the last 17 years suggested a likely change in approach to the use of length of service in determining pay.

The court has now said that the general rule is that length of service as a criterion is appropriate to attain the legitimate objective of rewarding experience that enables a worker to perform his duties better.

The court has also said that the employer does not have to establish this general rule specifically in relation to any particular job unless a worker provides evidence capable of raising serious doubts about the appropriateness of service-related pay in relation to a particular job.

Even where the employee provides such evidence, if the employer has a job evaluation scheme in place to determine pay, the employer does not need to show that an individual, longer-serving employee has gained experience during the period of longer service which has enabled him to perform his duties better.

This judgment expands upon an ECJ judgment of 17 years ago, which it upholds, by allowing for cases where an employee can raise serious doubts about the appropriateness of length of service as a factor in pay regarding their particular job.

The court acknowledged that service-related pay plays an important part in the continuing pay gap between men and women.

Evidence was accepted that, in the UK and throughout the European Union, the length of service of female workers is on the whole less than that of male workers.

This disparity is caused by factors such as a greater likelihood that women will take time out of the paid workforce for child care, elder care or other family responsibilities.

The judgment does not mean that women workers can be paid less than their male colleagues because of taking maternity leave or, for example, that a male or female worker who takes adoptive leave can be paid less than a colleague who did not take that leave.

Maternity and adoptive leave are periods of protective leave and count as service with an employer.

These periods cannot be deducted from an employee's service so that the employee will be paid less than a colleague who does the same job and started work on the same day because of a difference in service caused only by protective leave.

As a result of this judgment, Cadman can now seek to show that she has evidence that will require her employer to justify the application of the general rule to her employment.

The judgment also means that employers can continue to pay service-related pay, such as pay based on incremental scales, and that they generally will not be required to prove the basis for this practice.

There will always be exceptional cases, but the burden will be on employees to provide evidence that their cases are likely to be exceptions to the general rule.

Michelle Ní Longáin is a partner at BCM Hanby Wallace solicitors