J P Jenkins v Kingsgate (Clothing Productions) Ltd: ECJ 31 Mar 1981

ECJ The fact that work paid at time rates is remunerated at an hourly rate which varies according to the number of hours worked per week does not offend against the principle of equal pay laid down in article 119 of the Treaty in so far as the difference in pay between part-time work and full-time work is attributable to factors which are objectively justified and are in no way related to any discrimination based on sex. It is for the national courts to decide in each individual case whether, regard being had to the facts of the case, its history and the employer’s intention, a pay policy represented as a difference based on weekly working hours is or is not in reality discrimination based on the sex of the worker. Therefore a difference in pay between full-time workers and part-time workers does not amount to discrimination prohibited by article 119 of the Treaty unless it is in reality merely an indirect way of reducing the level of pay of part-time workers on the ground that that group of workers is composed exclusively or predominantly of women. Article 119 of the treaty applies directly to all forms of discrimination which may be identified solely with the aid of criteria of equal work and equal pay referred to by the article in question, without national or community measures being required to define them with greater precision in order to permit of their application. The forms of discrimination which may be thus judicially identified include cases where men and women receive unequal pay for equal work carried out in the same establishment or service, public or private. Where the national court is able, using the criteria of equal work and equal pay, without the operation of community or national measures, to establish that the payment of lower hourly rates of remuneration for part-time work than for full-time work represents discrimination based on difference of sex the provisions of article 119 of the treaty apply directly to such a situation. Article 1 of Council Directive 75/117/EEC which is principally designed to facilitate the practical application of the principle of equal pay outlined in article 119 of the treaty in no way alters the content or scope of that principle as defined in the Treaty.

Advocate-General Warner
C-96/80, [1981] 1 WLR 972, [1981] ICR 592, R-96/80, [1981] EUECJ R-96/80, [1981] IRLR 228 (ECJ), [1981] ECR 911
Council Directive 75/117/EEC
CitedGriggs v Duke Power Company 1971
(US) The court examined the arguments relating to indirect discrimination. . .

Cited by:
MentionedPickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
CitedBrunnhofer v Bank der Osterreichischen Postparkasse AG ECJ 26-Jun-2001
Europa Equal pay for men and women – Conditions of application – Difference in pay – Definition of ‘the same work and ‘work of equal value – Classification, under a collective agreement, in the same job category . .
See AlsoBilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
CitedSecretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
CitedJ P Jenkins v Kingsgate (Clothing Productions) Ltd EAT 19-Jun-1981
The claimant worked part time. She said that she should have been paid at the same rate as her male full time equivalents, the failure being incompatible with her rights under Article 119.
Held: The scope of Article 119 EEC covers not only . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 27 December 2021; Ref: scu.133030