The European Court of Justice found that it did not constitute gender discrimination that flight crew and cabin crew did not receive the same daily subsistence allowances even though they worked on the same aircrafts.

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According to Article 4 of the Equal Treatment Directive, which in Denmark is implemented in the Equal Pay Act, no direct or indirect discrimination on the grounds of gender may take place with regard to any aspects and conditions of remuneration when it comes to the same work or work of equal value. In addition, according to Article 14 of the Directive, which has been implemented in the Equal Treatment Act, no discrimination may take place when deciding employment and working conditions.

The case concerned the Spanish airline Air Nostrum which paid lower daily subsistence allowances to cabin crew, of which women represented 94% and men 6%, than flight crew, 6.29% of whom were women and 93.71% men. The daily subsistence allowances, which were paid at a flat rate, were 75% higher for the flight crew than for the cabin crew, even though it was meant to cover the same costs during work-related travelling. The reason for the different amounts of daily subsistence allowances was that the two employee groups were subject to different collective agreements.

When submitting the question to the ECJ for a preliminary ruling, the referring court took into account that the daily subsistence allowances were not regarded as a part of the employees’ salary, since the allowances did not remunerate work. Instead, the referring court considered the allowances to form part of the employees’ working conditions.

The referring court therefore sought to clarify whether the higher amount of daily subsistence allowances paid to the flight crew constituted gender discrimination in relation to the employees’ working conditions.

Pay element or working condition?
First of all, the ECJ found that since the daily subsistence allowances were intended to cover certain expenses related to business travel incurred in the course of the employees’ employment with the airline, the daily subsistence allowances constituted a part of the employees’ salary. On this basis, the ECJ held that the assessment of whether the different amounts of daily subsistence allowances were discriminatory on the grounds of gender depended on the question of whether it was the same work or work of equal value.

The ECJ stated that in this assessment a variety of factors must be taken into account, including the nature of the work, professional training and working conditions. The ECJ then stated that flight crew and cabin crew clearly do not perform the same work. Furthermore, given the training required to perform the duties of a pilot and the responsibilities associated with that profession, the ECJ found that flight crew and cabin crew do not perform work of equal value.

Accordingly, the ECJ found that the provisions of the collective agreement providing for higher daily subsistence allowances for flight crew did not constitute discrimination on the grounds of gender in breach of the Equal Treatment Directive. 

Norrbom Vinding notes:

With this ruling, the ECJ emphasises that daily subsistence allowances or travel allowances paid at a flat rate to cover certain expenses incurred in connection with an employee’s employment must be considered part of the employee’s salary in relation to the issue of equal pay.

The content of the above is not, and should not be a substitute for legal advice.