1. a rule of national law under which the length of service of part-time employees was calculated as being only a proportion of actual years worked is unlawful unless it can be justified by objective criteria unrelated to discrimination on grounds of sex.
   
2. that indirect sex disrimination against part-timers may be justified on objective, non-sex related, grounds if the employer shows that part-timers generally take longer than full time staff to acquire relevant relevant job related skills
   
3. art 119 of the Treaty of Rome applies to public servants.

See also notes on Barry v Midland Bank plc 1999 (CA) ICR 319, CA.

Facts

The Bavarian State civil service provides that length of service and merit are both taken into account in preparing listings of employees who are "eligibility for promotion". For example, a civil servant assessed as "very good" will be entered on the list of those eligible for promotion after 3 1/2 years service whereas one who is assessed as "broadly satisfactory" is not eligible until 5 years service has been completed.

Until 1995 there were special rules for calculating the periods of service of part-timers for this purpose. Those working less than half-time did not qualify at all, those working between half and two-thirds were treated as having two- thirds of actual service and those working more than two-thirds were treated as full-timers.

Mrs Gerster worked half-time for the Bavarian civil service from September 1987 (she had also worked for it sometime previously, but had been on unpaid leave since 1984, and this previous service was not relevant to the decision).

She applied for promotion in 1993 but her application was rejected because the special rules noted above meant that only two-thirds of her actual service could be taken into account and so she was too low on the list of those eligible for promotion to qualify. She brought proceedings claiming that the rule was unlawful under EC law and the Bavarian court referred the matter to the ECJ.

Decision

The Bavarian court referred 3 separate questions to the ECJ. The questions and the ECJ's rulings are summarised below.

1. Does Article 119 of the Treaty of Rome (the equal pay article) apply to public servants? The ECJ ruled "yes".

2. Is the "2/3rds rule" noted above contrary to the Equal Pay directive 75/117/EC? The ECJ ruled "no, the rule did not contravene the Equal Pay Directive". This was because the rule did not concern "pay". It merely governed the status of particular employees on a listing of people eligible for promotion.

3. Is the "2/3rds rule" noted above contrary to the Equal Treatment directive 76/207/EC? The ECJ ruled "yes, the rule is contrary to the Equal Treatment directive unless it can be objectively justified on grounds other than sex". This was on the now familiar ground that many more women than men are part-time employees.

The ECJ remitted the case back to the Bavarian court to decide whether the discrimination could be objectively justified. It gave some guidance by suggesting that it would be justified if it were shown that part-timers in the posts concerned generally took longer than full time staff to acquire job related skills and that there was a legitimate social policy aim underlying the "2/3rds rule".