Enderby v Frenchay Health Authority and Another: ECJ 27 Oct 1993

Discrimination – Shifting Burden of Proof

(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female profession, were appreciably less well paid than members of comparable professions in which at an equivalent professional level there were more men than women. In particular she was comparing herself with two men – a clinical psychologist and pharmacist. The employer sought to justify the difference in pay by showing that the pay rates had resulted from different collective bargaining processes, each of which was free from any sex bias.
Held: Once prima facie discrimination shown, the burden of proof shifts to the employer to show good cause. A difference in treatment is to be justified objectively or assumed to be discriminatory. When statistics were used, it is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant.
ECJ 1. Article 177 of the Treaty provides the framework for close cooperation between national courts and the Court of Justice, based on a division of responsibilities between them. Within that framework, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the Court.
Consequently, where the Court receives a request for interpretation of Community law which is not manifestly unrelated to the reality or the subject-matter of the main proceedings, it must reply to that request and is not required to consider the validity of a hypothesis which it is for the referring court to verify subsequently if that should prove to be necessary.
2. The burden of proving the existence of sex discrimination, which in principle lies with the worker who, believing himself to be the victim of such discrimination, brings legal proceedings against his employer, may shift when that is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay.
Where therefore statistics which the national court considers significant disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex.
3. The fact that the rates of pay for two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not, where the results of those processes show that two groups with the same employer and the same trade union are treated differently, preclude a finding of prima facie discrimination requiring the employer to prove that there is no infringement of Article 119 of the Treaty.
If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could easily circumvent the principle of equal pay by using separate bargaining processes.
4. It is for the national court, which has sole jurisdiction to make findings of fact, to determine, if necessary by applying the principle of proportionality, whether and to what extent the shortage of candidates for a job and the need to attract them by higher pay constitutes an objectively justified economic ground for the difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men.

Times 12-Nov-1993, Ind Summary 29-Nov-1993, [1993] IRLR 591, C-127/92, [1993] EUECJ C-127/92, [1994] ICR 112, [1994] 1 All ER 495, [1994] 1 CMLR 8, [1993] ECR I-5535
See AlsoEnderby v Frenchay Health Authority and Secretary of State for Health etc CA 17-Feb-2000
Once unequal treatment had been established it was necessary to take each clause of the contract of the claimant and the comparator and to remove any lesser treatment. Nevertheless, where pay was to be calculated according to a scale including . .

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CitedGibson and Others v Sheffield City Council CA 10-Feb-2010
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CitedFaulkner v Hampshire Constabulary EAT 2-Mar-2007
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CitedCumbria County Council v Dow and others EAT 24-May-2007
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CitedMiddlesbrough Borough Council v Surtees and others EAT 17-Jul-2007
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CitedGMB v Allen and others EAT 31-Jul-2007
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CitedSunderland City Council v Brennan and others EAT 20-Jun-2008
Preliminary issues
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The claimants brought various equal pay claims naming refuse collectors as comparators. The claimants were in predominantly female jobs and the . .
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The decision of the appeal tribunal held on 2 November 2007 is erroneous in point of law. I set aside that decision. I re-make that decision pursuant to s.12(2) of the Tribunals, Courts and Enforcement Act 2007. The claimant is not entitled to . .
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The employer appealed against a finding that it had acted in an equal pay claim in allowing for length of service.
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CitedSharp v Caledonia Group Services Ltd EAT 1-Nov-2005
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The . .
CitedArmstrong 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 . .
CitedVillalba v Merrill Lynch and Co Inc and others EAT 31-Mar-2006
EAT Victimisation discrimination. Tribunal found victimisation discrimination to a limited extent. Did the Tribunal apply the right test when determining whether such discrimination had arisen? Did it reach . .
CitedSK (Proof of Indirect Racial Discrimination) India AIT 5-Sep-2006
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CitedSharon Marie Grady v Home Office EAT 4-Mar-2004
EAT Practice and Procedure – Striking-out/dismissal. . .
CitedThe Home Office v A Bailey and others EAT 2-Jul-2004
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The EAT allowed an appeal by the Home Office from a decision of an Employment Tribunal which had determined as a preliminary issue that the Home Office was . .
CitedArmstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
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Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
CitedIgen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
CitedRobertson and others v Department for Environment Food and Rural Affairs CA 22-Feb-2005
The claimants argued that civil servants in one government department could establish that civil servants in another department could stand as comparators in their equal pay claim.
Held: It was not necessarily the person with whom the workers . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Leading Case

Updated: 02 November 2021; Ref: scu.160919