Ruairi Quinn (Dublin South East, Labour)
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Question 135: To ask the Tánaiste and Minister for Justice, Equality and Law Reform the Government's position on the recent judgment by the European Court of Justice on a case (details supplied); his views on whether changes to Irish law will be required following this judgment; if he has sought advice on the matter; his further views on whether time spent caring for children should be taken into account when determining equality of pay between genders; and if he will make a statement on the matter. [32059/06]

David Stanton (Cork East, Fine Gael)
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Question 189: To ask the Tánaiste and Minister for Justice, Equality and Law Reform his views on the European Court of Justice judgment delivered on 3 October 2006 on Case C-17/05; the possible implications of same; and if he will make a statement on the matter. [31856/06]

David Stanton (Cork East, Fine Gael)
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Question 190: To ask the Tánaiste and Minister for Justice, Equality and Law Reform the implications of the European Court of Justice judgment on Case C-17/05 for people in employment here; and if he will make a statement on the matter. [32086/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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I propose to take Questions Nos. 135, 189 and 190 together.

My Department has consulted with the Office of the Attorney General and with the Department of Finance about the implications of the judgment of the European Court of Justice (ECJ) in the case referred to by the Deputies.

As the Deputies will appreciate, under EU law, indirect discrimination on the ground of sex, in issues relating to pay is unlawful. In such cases, indirect discrimination would be defined as where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

The point at issue in the recent case under reference was: where the use by an employer of the criterion of length of service (an apparently neutral provision) as a determinant of pay has a disparate impact as between relevant male and female employees, does Article 141 of the EU Consolidated Treaties require the employer to provide special justification for recourse to that criterion?

In 1989, in the judgment in Danfoss, the ECJ, after stating that it is not to be excluded, that recourse to the criterion of length of service may involve less advantageous treatment of women than of men, held that the employer does not have to provide special justification for recourse to that criterion. By adopting that position, the Court acknowledged that rewarding in particular experience acquired, which enables the worker to perform his/her duties better, constitutes a legitimate objective of pay policy.

As a general rule, recourse to the criterion of length of service is appropriate to attain that objective. Length of service goes hand in hand with experience, and experience generally enables the worker to perform his/her duties better. The employer is therefore free to reward length of service without having to establish the importance it has in the performance of specific tasks entrusted to the employee.

In the same judgment, the Court did not, however, exclude the possibility that there may be situations in which recourse to the criterion of length of service must be justified by the employer in detail.

In the case under reference the Court of Appeal of England and Wales was uncertain whether the case-law of the ECJ had departed from the finding in Danfoss that 'the employer does not have to provide special justification for recourse to the criterion of length of service' and submitted the question for a preliminary ruling under Article 234 of the EC Treaty. The ECJ in their recent judgment found that Article 141 EC is to be interpreted as meaning that, where recourse to the criterion of length of service as a determinant of pay leads to disparities in pay, in respect of equal work or work of equal value, between the men and women included in the comparison

the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard, since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his/her duties better;

there is no need to show that an individual worker has acquired experience during the relevant period which has enabled him/her to perform his/her duties better where a job classification system based on an evaluation of the work to be carried out is used in determining pay.

The ECJ characterised this judgment as containing only a clarification of the case-law in this field. It has, thus, clarified the meaning of Danfoss but confirmed that it remains good law and that, as a result, has confirmed, in principle, that the use of criterion of length of service is an appropriate means of attaining the legitimate objective of rewarding experience acquired which enables the worker to perform his/her duties better. In general, the employer will not be required to prove that actual experience has been acquired.

Given that the judgment does not represent a significant change to existing case law, no change in Irish domestic law is required. The Government recognise that the gender pay gap, while narrowing, remains. It is committed to policy measures, to facilitate work-life balance, which enable parents to manage work and family responsibilities without breaching service, and thus maintaining pay scale progression.