Equal-rights ruling 'didn't change anything'

The recent European Court of Justice (ECJ) ruling which stated that an employee could be paid more than a colleague if they had a longer length of service was reported as discriminatory towards women taking maternity leave and a back-track on equality rights. But in fact the ruling had nothing to do with maternity leave and was a clarification and improvement of case law in the area that had been established 17 years previously.

The court was ruling on the case of Bernadette Cadman who had worked as a health-and-safety inspector with the Health and Safety Executive in the UK. Cadman was being paid €13,000 less than her male colleagues, who were on the same grade as her but had a longer length of service. Cadman argued that length of service would often depend on domestic circumstances such as pregnancy and that this should be taken into account.

The ECJ ruled on 3 October that an employer had a right to establish a salary level based on length of service. This right had been established in the Danfoss case 17 years previously. However, the Cadman judgement went further than Danfoss. In Danfoss, they said an employer did not have to justify this pay difference. The Cadman case established a new right whereby an employee could challenge the pay difference if there were serious doubts about it and the employer must justify it. In relation to maternity leave, the ECJ ruling altered nothing as maternity leave is not counted as service.

Darius Whelan, a lecturer in labour and employment law at UCC, says that the case "didn't change anything, didn't change the law" and in fact opened to door for claims to be brought. He said we should "hold our fire" as the real impact of the judgement could not be judged until the UK court rules on the ECJ judgement.

The ECJ's ruling was greeted by a headline in the Irish Independent on 4 October: "Pay ruling will undo 50 years of women's struggle", a quote attributed to Joanna McMinn of the National Women's Council of Ireland (NWCI). She still stands by her assessment that the judgement is discriminatory.

Although she acknowledges that the judgement was merely clarifying an existing legal right, she believes that "in real terms the judgement will be a disincentive for women to take a career-break for child-rearing".

The Irish Equality Authority has not yet commented on the case but the British equivalent, the Equal Opportunities Commission, said, "Contrary to media speculation, this decision puts it beyond question that employers can be challenged by women who can provide evidence that casts serious doubt that longer service does actually lead to better performance."

Emma Browne