EXPERIENCE COUNTS WHEN FIXING SALARY SCALES FOR OPHTHALMOLOGISTS

The salary scale for ophthalmologists newly hired as permanent public servants should reflect at least some of the length of service they have already accrued under any fixed-term state contracts, under a new ruling from the European Union’s highest court. In its decision, handed down in late October, the Court of Justice found that the same EU laws that prohibit discrimination against fixed-term workers continue to protect those same workers from discrimination once they are hired permanently.

Under EU law adopted in 1999, “fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.†The case arose after the Italian National Competition Authority hired, on a permanent basis, five employees previously employed by the authority under fixed-term contracts. In determining the pay scale for those employees, the authority refused to take into account any of the periods of service previously completed by those employees under the fixed-term contracts. The employees consequently contested that refusal in the Regional Administrative Court in Rome.

The Regional Administrative Court dismissed the employees’ case on the basis of an Italian national law that prohibits the state from crediting any length of service accrued as a fixed-term state employee in setting the pay scale for that employee if later hired as a permanent civil servant. The Competition Authority employees appealed the Administrative Court’s decision to Italy’s Council of State, arguing that the national law was illegal under EU law because the law unfairly discriminated against them. At the core of their appeal was their argument that the duties they performed under fixed-term contracts were exactly the same as those they performed as permanent employees. As such, they argued that they should be credited with the length of service accrued as fixed-term workers in the setting of their level of civil servant pay.

The Council of State rejected the employees’ argument on the basis that by refusing to give credit for length of service under a fixed contract, the law was properly attempting to avoid so-called “reverse discrimination†against permanent civil servants who had been recruited on a permanent basis following a general competition. Despite its findings, the Council of State referred the case to the European Court of Justice in Luxembourg because another Italian court, hearing a separate case, had found that the length of service accrued must be acknowledged when converting a fixed-term employment contract into a permanent one. In its judgment, the Court of Justice found that the EU legal principle of non-discrimination provides that fixedterm workers must not be treated in a less favourable manner than comparable permanent workers solely because they work on a fixed-term basis, unless different treatment is justified on objective grounds. The fact that the Competition Authority employees had acquired the status of permanent workers did not exclude the possibility of relying on that principle.

Having made that general finding, the Court of Justice said that it was not for it but rather for national courts to apply such a principle when determining if employees working under fixed-term contracts were in a situation comparable to that of career civil servants employed on a permanent basis. The Court of Justice stated that national courts should take account of the nature of the duties performed by those employees under fixed-term employment contracts and the quality of the experience which they thereby acquired in determining whether they were, in fact, working in a situation comparable to that of career civil servants. On that basis, if the national court found that the nature and experience of the fixed-term work were the same as the nature and experience of the permanent work, a public authority could not discriminate against the fixed term worker by failing, in setting the appropriate civil servant pay scale, to acknowledge the duties already performed and experience already gained.

The Court of Justice also found, that as a general principle, just because fixed-term workers had not passed the general competition for obtaining a post in the public sector did not, of itself constitute objective grounds for discriminating against them. The Court of Justice ruled that to be objective, such a ground for discriminating against the fixed-term workers can only be “justified by the existence of precise and specific factors, characterising the employment condition to which it relates, in the particular context in which it occurs and on the basis of objective and transparent criteria in order to ensure that unequal treatment in fact meets a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.â€

The Court of Justice noted that even were there to be an objective ground for discrimination against fixed-term workers, the discrimination must be proportionate to the objective. In this case, the refusal to take account of any of the length of service accrued under the fixed-term contracts in determining the civil servant pay scale was not proportionate to the objective and so was illegal. The court held that Italy “cannot, in any event, justify disproportionate national legislation such as that at issue in the main proceedings which completely and in all circumstances prohibits all periods of service completed by workers under fixed-term employment contracts being taken into account in order to determine the length of service of those workers upon their recruitment on a permanent basis and, thus, their level of remuneration.â€

To allow the temporary nature of an employment relationship to justify a difference in treatment as between fixed-term workers and permanent workers would render the objectives of EU law “meaningless†and would be tantamount to perpetuating a situation that is disadvantageous to fixed-term workers, the court held.