Instantie: HvJEG, 18 mei 2006




The AG concludes that:·         Where the use by an employer of the criterion of length of service as a determinant of pay has a disparate impact as between relevant female and male employees, Article 141 EC, together with Article 2(2) and Article 4 of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, require the employer to demonstrate that the way in which the criterion is used as a pay determinant in respect of the post concerned takes into account the business needs of the undertaking and that the criterion is applied proportionately so as to minimise the disadvantageous impact it has on women. If the employer is unable to provide justification for the structure of the pay system, it will have to provide specific justification for the difference in pay levels as between the employee who has complained and other employees performing the same job. No distinction should be made between the use of the criterion of length of service in the case of part-time workers and the use of that criterion in the case of full-time workers.

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