Jorgensen v Foreningen af Speciallaeger and Sygiesikningens Forhandlingsudvalf [2000] IRLR 726
Ms Jorgensen is a Danish doctor specialising in rheumatology. The arrangements for the funding of doctors' practices is set out in an agreement between those practices and the Danish medical insurers. The level of funding depended on whether a practice was designated as full or part-time. To cut costs, the arrangements were revised and practices redesignated.
Ms Jorgensen's practice was redesignated as part-time, leading to a lower level of funding, largely because of her reduced working hours whilst looking after her children. She claimed that she had been discriminated against under both the equal pay and the equal treatment directives.
Upholding her claim, the European Court of Justice made two important findings.
First, it is well established that, when comparing an applicant's and a comparator's pay, or other terms and conditions for the purpose of equal pay laws, the correct approach is to compare each individual component on a "line by line" basis, rather than adopting an "aggregate" assessment of the overall value of the two packages. In Ms Jorgensen's case, the ECJ found that this approach extends to cases of less favourable treatment not based on pay.
Once an applicant has established that her pay is lower than a male colleague, and that she does similar work or work of equal value, it is then up to the employer to explain away the pay difference. If they cannot, the woman will be entitled to the higher pay both backdated and for the future.
The ECJ also confirmed in this case that budgetary considerations alone are not sufficient to justify discriminatory pay practices. This much is helpful. But the ECJ went on to distinguish "budgetary considerations" from measures which have the effect of ensuring "sound management of expenditure" on healthcare provision, and which ensure access to healthcare facilities, which they said are capable of justifying pay discrimination. Unfortunately, it is highly debatable whether a real distinction between these two categories really exists!