Allonby v Accrington and Rosdale College [2004] 33 ILJ 281

• Plaintiffs, Part time lecturers at the College, did not have their contracts renewed.

  • They were rehired through an agency and said to be 'self employed ICs' under the new arrangement.

  • A greater proportion of the lecturers under this arrangement were women than the staff that remained under permanent contracts with the college.

• They brought an equal pay claim and the Court of Appeal referred to the European Court of Justice for advice on the application of Article 141.

• ECJ held that, despite being classed as ICs, Plaintiffs were ‘workers’, which are covered by Article 141.

• However claim failed because there was no male comparator in the same employment as Plaintiff that she could point to in order to show unequal pay. 

ECJ

• Article 2 EC gives the Community the aim of promoting equality between men and women, so its necessary to have a broad definition of worker.

There must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration… [but] the authors of the Treaty did not intend that the term worker, within the meaning of Article 141(1) EC, should include independent providers of services who are not in a relationship of subordination with the person who receives the services.

• Thus, it is irrelevant that national law labels someone as an IC if really Plaintiff is in a subordinate relationship and has only notional independence.

• HOWEVER Plaintiff could not compare her pay with the pay of her colleagues who were still employed directly by the College.

  • Unless there is a single source of pay discrimination, Article 141 does not enable such a "cross-employer" comparison to be made.

Article 141(1) EC must be interpreted as meaning that a woman whose contract of employment with an undertaking has not been renewed and who is immediately made available to her previous employer through another undertaking to provide the same services is not entitled to rely, vis-à-vis the intermediary undertaking, on the principle of equal pay, using as a basis for comparison the remuneration received for equal work or work of the same value by a man employed by the woman's previous employer.