Action at national level: examples - Case Studies on the gender pay gap
Based on actual cases that have been referred to national courts and/or the European Court of Justice (ECJ):
- Job evaluation : Most job evaluation systems look at four basic factors. Using these factors can be useful in uncovering hidden discrimination or the under-valuing of women's work.
- Skill : the experience, training, education and ability required to do the job. This includes the mental and physical abilities required to perform the job and considers variables such as complexity, difficulty and speed.
- Effort : the physical or mental exertion needed to perform the job. This includes the intellectual effort and the physical effort and variables such as frequency, duration, exertion, strain etc.
- Responsibility : the extent to which employees are accountable for the work that they do and the impact or importance to the organisation. This refers to the importance of certain elements of a job and its impact on the organisation. It includes human, technical and financial resources and variables such as importance, size, value and accountability.
- Working Conditions : the physical surroundings and hazards of the job. This refers to the work environment in which employees are required to perform their jobs. It includes physical and psychological conditions and variables such as danger, unpredictability, negativity, duration and frequency.
A classroom assistant
In the UK, a classroom assistant made a claim for equal pay on the basis that her job was very challenging in providing support and learning from children with autism in a mainstream school.
In her view, her job also required a high level of skill in knowing of developments in occupational, speech and behavioural therapy, knowledge of the school curriculum and specific skills in working with autistic children. She compared her pay to that of gravediggers and road workers, who were also employed by the municipality, who earned an average of 20% more than her.
The woman's union supported her case and argued that the jobs of classroom teachers were largely held by women, whereas the jobs of gravedigger and road workers were largely held by men.
The equal pay case was taken on the grounds that the work carried out by the classroom assistant was under-valued. One of the difficulties that women classroom assistants face is that men in manual jobs are more likely to receive a bonus payment, than women carrying out caring roles.
Two midwives working in a regional hospital
Two midwives working in a regional hospital in Sweden compared their pay with that of a medical technician working in the same hospital. The pay and conditions of employment of the three workers was set by collective agreements. A job evaluation of the jobs was carried out on the basis of four criteria for determining the value of a job based on knowledge and competence, effort, responsibility and working conditions. On the basis of their knowledge and competence the women claimed that the demands of their jobs were higher than those of the technician.
The Labour Court in Sweden found that the work performed by the two midwives and the medical technician was of equal value, even though the technician had earned substantially more than the midwives. However, in this case, the Court did not see the workers' different salaries as constituting wage discrimination because wages were set in collective agreements which determine the market value of a job.
In this case it is clear that is important that collective agreements include an equality clause so that collectively agreed pay rates do not discriminate against women where they work in jobs that are comparable to men's jobs. Union' negotiations in Sweden have highlighted the importance of removing discrimination in pay systems, of valuing women workers and introducing specific equality awards for low paid workers in predominantly female sectors of the economy.
A woman working part-time for a telecoms company
A woman working part-time for a German telecoms company had not been included in the company pension scheme because she was a part-time worker. On retirement she claimed a pension entitlement backdated the entire period of her work for the company.
Because the collective agreement in force at the time in Germany did not include any restrictions on a part-timers right to be included in a pension scheme it was ruled that she has the right to backdate her claim for a pension.
A part-time worker in an enterprise
In an enterprise in Austria a part-time worker made a claim against her employer on the basis that she was treated differently than full-time workers with regards to pay increases. Full-time workers were promoted to a higher pay category every two years, whereas part-time workers were promoted only every four years.
The European Court of Justice and the Austrian Constitutional Court ruled that part-time workers had been discriminated against. Their lower levels of experience and lower efficiency did not constitute grounds for paying disproportionately. Lower pay was justified only when there were differences in the quantity of quality of tasks assigned to staff. As a result because part-timers cannot be discriminated against they are entitled to be treated equally with full-time staff and be promoted to a higher income category every two years.
This case study shows that part-time workers, who in many cases are women, have the same rights as full-time staff regarding pay increase.
A group of female school catering staff
In the UK, a group of female school catering staff took a case against the County Council on the basis of equal pay. The case was referred to the European Court of Justice on the basis that their pay was reduced following the contracting out of their service. The women compared their pay with men who were directly employed in the local authority.
The women's new employer argued that the reduced pay was a necessary effect of 'market forces' and that this was justified because cuts in pay were the only way in which they could win the tender for catering services and be competitive. However, the pay of their male comparators, with whom they had previously been on the same pay scale, was not cut.
The European Court of Justice ruled that even when their service was contracted out that they were still entitled to be paid equal pay. The court stated that there was no reason in principle why workers may not compare their pay to those doing similar work for other employers. The women eventually won a successful outcome to their case (Lawrence & others v Regent Office Care Ltd & others).
This case should be seen in the broader scope of the gender pay gap as it is related to unequal pay between male and female employees.
A woman working as a chef
A woman working as a chef working for 40 hours per week, prepared 10-20 lunches for Directors and Managers of the Company. She claimed equal pay with two more highly paid male assistant chefs who worked 45.5 hours per week in the general works canteen preparing 350 meals a day.
The Industrial Tribunal in the UK decided that the work done by the two men, particularly the number of hours worked and the number of meals prepared, was not of sufficient practical importance to justify a difference in pay (Capper Pass Ltd v Lawton). Therefore, the tribunal found in favour of the female chef.
A woman Team Leader working in a municipality
A woman Team Leader working in a municipality in the UK, claimed equal pay with her male colleague who was employed in a similar position, on the basis that their jobs had been rated as equivalent under the employer's job evaluation scheme. Even though the woman was graded differently under a valid job evaluation scheme, she only scored a few points less than her male comparator and this was within the same salary grade. She was regarded as having been evaluated at the same level and was therefore entitled to claim that his job had been rated equivalent to hers.
The woman won her case in the court and received equal pay with her comparator.
A female Stockroom Manager
A female Stockroom Manager made an equal pay claim comparing with her male predecessor who earned more than she did on the basis of like work.
The European Court of Justice found that the principle of equal pay for equal work guaranteed by the Treaty is not confined to situations in which a man and a woman are doing equal work for their employer contemporaneously. It also applies where a woman receives less pay than a man employed before her. Comparisons with a predecessor are therefore possible (MacCarthys v Smith Limited).
A woman who was contracted to work 23 hours per week as a part time teacher
A woman who was contracted to work 23 hours per week as a part time teacher, compared her pay to that of full time teachers who were contracted to work 26.5 hours. During her employment she worked between four and six hours overtime per month. However, German law stated that she would only be paid for the overtime if she worked more than five hours overtime a month at an hourly rate that was less than the standard rate. This disadvantaged the woman because, once she had done her 23 contracted hours, she went onto the lower rate. The woman claimed that her overtime rate should be calculated at the same hourly rate as full-time teachers.
The European Court of Justice said that it was clear that a part time teacher whose normal hours are 23 a week but who works overtime of 3.5 hours was being paid less for those 26.5 hours than a full time teacher for the same hours. As a result the European Court of Justice stated that there was a difference in treatment that was detrimental to part time workers and that this would be contrary to the principle of equal pay if considerably more women than men were affected and the difference could not be justified by objective factors (Voss v Land Berlin).
This case underlines the principle of equal pay and shows how women can benefit from it.
Please find here all the documents related to the gender pay gap.