ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a duty to ensure the protection of the rights which that provision vests in individuals, in particular in the case of those forms of discrimination which have their origin directly in legsilative provisions or collective labour agreements, as well as where men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public.
(A) the application of the principle that men and women should receive equal pay was to have been fully secured by the original member states as from 1 January 1 – language of the case : french. 1962, the end of the first stage of the transitional period. Without prejudice to its possible effects as regards encouraging and accelerating the full implementation of article 119, the resolution of the member states of 31 December 1961 was ineffective to make any valid modification of the time-limit fixed by the treaty. Apart from any specific provisions, the treaty can only be modified by means of the amendment procedure carried out in accordance with article 236. (B) in the absence of transitional provisions, the principle that men and women should receive equal pay has been fully effective in the new member states since the entry into force of the accession treaty, that is, since 1 January 1973. The council directive no 75/117 was incapable of diminishing the effect of article 119 or of modifying its effect in time.
Important considerations of legal certainty affecting all the interests involved, both public and private, make it impossible in principle to reopen the question of pay as regards the past. The direct effect of article 119 cannot be relied on in order to support claims concerning pay periods prior to the date of this judgment, except as regards those workers who have already brought legal proceedings or made an equivalent claim.
Even in the areas in which article 119 has no direct effect, that provision cannot be interpreted as reserving to the national legislature exclusive power to implement the principle of equal pay since, to the extent to which such implementation is necessary, it may be achieved by a combination of community and national provisions.
It is demeaning for a woman air hostess to be told that she cannot continue as cabin crew after the age of 40. The court however limited the effect of its ruling to future breaches.
Europa 1. The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a duty to ensure the protection of the rights which that provision vests in individuals, in particular in the case of those forms of discrimination which have their origin directly in legsilative provisions or collective labour agreements, as well as where men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public. 2. ( A ) the application of the principle that men and women should receive equal pay was to have been fully secured by the original member states as from 1 january1 – language of the case: french. 1962, the end of the first stage of the transitional period. Without prejudice to its possible effects as regards encouraging and accelerating the full implementation of article 119, the resolution of the member states of 31 december 1961 was ineffective to make any valid modification of the time-limit fixed by the treaty. Apart from any specific provisions, the treaty can only be modified by means of the amendment procedure carried out in accordance with article 236.
( B ) in the absence of transitional provisions, the principle that men and women should receive equal pay has been fully effective in the new member states since the entry into force of the accession treaty, that is, since 1 january 1973. The council directive no 75/117 was incapable of diminishing the effect of article 119 or of modifying its effect in time. 3. Important considerations of legal certainty affecting all the interests involved, both public and private, make it impossible in principle to reopen the question of pay as regards the past. The direct effect of article 119 cannot be relied on in order to support claims concerning pay periods prior to the date of this judgment, except as regards those workers who have already brought legal proceedings or made an equivalent claim. 4. Even in the areas in which article 119 has no direct effect, that provision cannot be interpreted as reserving to the national legislature exclusive power to implement the principle of equal pay since, to the extent to which such implementation is necessary, it may be achieved by a combination of community and national provisions.
Citations:
C-43/75, [1976] ICR 547, [1981] 1 All ER 122, R-43/75, [1976] EUECJ R-43/75, [1976] ECR 455, [1976] EUECJ C-43/75
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Statutes:
Jurisdiction:
European
Citing:
See Also – Gabrielle Defrenne v Belgian State ECJ 25-May-1971
ECJ The concept of pay as defined in article 119 of the EEC Treaty does not include social security schemes or benefits directly governed by legislation without any element of agreement within the undertaking or . .
Cited by:
Cited – Morton v South Ayrshire Council IHCS 14-Feb-2002
The applicants were head teachers employed in junior schools. They alleged sex discrimination, and sought to use as comparators head teachers from different local authorities. The comparators had been put forward on the basis that the teacher in . .
Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Applied – Smith v Macarthys Ltd EAT 14-Dec-1977
Mrs Smith was employed by the respondents, wholesale dealers in pharmaceutical products, as a warehouse manageress at a weekly salary of andpound;50. She complained of discrimination in pay because her male predecessor whose post she took up after . .
Cited – Macarthys Ltd v Smith CA 1980
The employee had taken on a job substantially similar to that of a previous male employee, but had been paid less. She succeeded in a claim under the 1971 Act before the industrial tribunal and Employment Appeal Tribunal. The employer appealed . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
See also – Defrenne v Sabena Airlines ECJ 15-Jun-1978
LMA Ms Defrenne was an air hostess employed by SABENA, a Belgian airline company. She brought an action against the airline based on Art.119 [now141] EC. Ms Defrenne claimed that in paying their male stewards . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Cited – Abdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Cited – O’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
Lists of cited by and citing cases may be incomplete.
Discrimination
Updated: 16 August 2022; Ref: scu.132209