Contact Admin. The European Court of Justice ruled that a term in a collective agreement, which indirectly discriminated against women by providing a severance payments scheme for full-time workers only, was contrary to Article of the Treaty of Rome. However, the employee was not eligible for this payment because she worked fewer than 38 hours per week.
Ms Kowalska complained to the Hamburg Labour Court that the hours condition for receipt of payment was indirectly discriminatory against women and contrary to Article of the Treaty of Rome which lays down the principle that men and women should receive equal pay for equal work.
Statistics showed that women constituted The labour court submitted two questions to the European Court of Justice for a preliminary ruling. Briefly, it asked whether Article was infringed by the qualification condition regarding part-time workers attached to the severance pay term in the collective agreement.
If so, did it follow that part-time employees had a right in proportion to their working hours to a severance payment — or did the autonomy enjoyed by parties to collective agreements preclude such a right? The Court confirmed following its decision in Barber v Guardian Royal Exchange Assurance Group IRLR that the fact that certain payments are made after termination of employment does not preclude them from constituting pay within the meaning of Article In the case brought by Ms Kowalska, the collective agreement gave the benefit of the severance payment only to full-time workers.
The Court held that such an agreement, which enabled employers to maintain an overall difference in pay between full-time and part-time workers, in practice resulted in discrimination against female workers where a considerably smaller percentage of men than of women worked part-time.
