Discrimination in remuneration has been very topical and much debated recently. One of the most recent contributions in this area is the judgment of the CJEU, which ruled on a preliminary question concerning possible discrimination in remuneration on the basis of gender.

The preliminary question was referred by the Spanish High Court in a dispute between the main parties, a trade union as plaintiff and the airline Air Nostrum as defendant. The subject-matter of the proceedings was alleged indirect discrimination in remuneration on the basis of gender in relation to the amounts of daily allowances for travel, non-travel and accommodation expenses. These allowances (or reimbursements) were provided at a lower level for employees in the position of cabin crew, where primarily female employees work, compared to allowances for another group of employees (mainly including employees in the position of pilots), where primarily male employees work.

In addition to the primary question of discrimination, the issue in the present case was whether or not the compensation in question formed part of remuneration within the meaning of Article 2 of Directive 2006/54/EC of the European Parliament and of the Council establishing the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (“the Directive”). According to the interpretation of the Spanish court, the flat-rate reimbursement of expenses does not fall within the scope of remuneration, but is part of the broader concept of working conditions within the meaning of Article 14 of the Directive.

According to the CJEU, even if the allowances at issue in the proceedings before the Spanish court are not paid in return for a unit of work (or time), they constitute an economic advantage paid directly by the employer to the employee, the purpose of which is to compensate, on a flat-rate basis, for certain expenses which the employee may have incurred in the performance of his/her obligations under his contract of employment. The mere fact that the allowances do not reward specific work performed is not sufficient to exclude such compensation from the concept of remuneration. Accordingly, the compensation in question constitutes a benefit provided by the employer to the employees in connection with their employment and falls within the concept of “remuneration” as defined in Article 2(1)(e) of the Directive and not within the terms and conditions of employment within the meaning of Article 14(1)(c) of the Directive.

On the issue of discrimination, the CJEU then assessed that it follows from Article 4 of the Directive that a difference in treatment with regard to the remuneration of workers can constitute prohibited indirect gender discrimination only if the remuneration is paid “for the same work or for work to which equal value is attributed”. In the present case, there is a marked difference in the nature of the work and the value attributed to it between cabin crew and pilots. The difference lies not only in the level of qualification required, but also in the skills required for the profession and the responsibility of pilots, which is considerably higher than that of cabin crew. In view of the above, the CJEU ruled that there could be no discrimination on grounds of gender in the present case.