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Under European law a predominantly female group of psychotherapists could not claim equal pay with a predominantly male group of psychotherapists even though the jobs they did were essentially the same, the European Court of Justice has ruled.
In Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse (Case C-309/97), the ECJ decided that the difference in the qualifications of the male and the female psychotherapists meant that the two jobs could not be treated as the same, so that no comparison could be made for equal pay purposes. The men were qualified doctors, the women qualified psychologists.
The ECJ accepted that the tasks performed by the two groups were "seemingly identical". But it then decided that the two groups of psychotherapists "draw upon knowledge and skills acquired in very different disciplines", the women drawing on their experience as psychologists and the men on their experience of medicine. The ECJ was also influenced by the fact that the male psychotherapists were qualified to carry out duties in other fields, whereas the female psychotherapists were not.
This is a very disappointing judgment and conflicts with UK case law and the Equal Pay Act as it narrows the scope for comparison between workers in a "like work" case. It is a well established principle in UK law that like work is to be judged on the nature of the work actually performed practice, and not what an employee might be required to do under their contract or what they are capable of doing.
The test is whether the work done is of the same or broadly similar nature. In Europe under Article 141 (formerly 119) the entitlement is to equal pay for the same job.
The ECJ have said in this case that professional training is a possible criterion for determining whether different employees are performing the same work. Other relevant factors, according to the ECJ, include the nature of the work and the working conditions.
The judgment does not say that different qualifications will always meant that same work cannot be established. Frustratingly the ECJ did not set out why training requirements would be relevant.
The most likely explanation is that the very different training of doctors to psychologists actually affected the nature of the work activity performed by each group as psychotherapists and the way they carried out their tasks - even though the tasks were the same. This will be less likely to apply in other cases.
This case should also not affect the existing UK case and scope of the Equal Pay Act which looks at the nature of the work in practice, since domestic law can be wider than European minimum equality law requirements.
Under UK law, the difference in qualifications between the two groups should properly have been considered at the material factor defence stage, rather than the comparison stage. Once the Applicants have shown they are engaged on like work to a male worker, the burden of proof shifts to the employer to justify the pay differential on grounds unrelated to sex. In the UK it would be at this stage that issues of qualifications and training would arise.
In any event UK law also enables comparisons for equal pay purposes to be made by the equal value, as opposed to the "like work", route. That avenue, in UK law, would also still be open to Applicants in the same position as the Austrian psychotherapists who were dealt with so harshly by the ECJ.