Anti-discrimination Flashcards
Defrenne (II) Sabena
Identified a double aim (economic and social purpose)
Has both vertical and **horizontal **direct effect
1) Involved lower pay for female than male flight attendants doing the same work. Court identified a second social purpose of Art 157, in addition to the economic one. This double aim…shows that the principle of equal pay forms part of the foundation of the coummunity.
2) The court also held that Art 157, unlike directives in this area, has both vertical and *horizontal *direct effect i.e. the principle of equal pay in Art 157 can be enforced/relied upon in national courts, whether the establishment/employer/service is private or public
Core provision of EU sex discrimination law?
Article 157
1. Each MS shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied
2. For the purposes of the Article, ‘Pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
1. that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement
2. that pay for work at time rates shall be the same for the same job
original text of article 119 reads: Each MS shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work
Defrenne (III) Sabena
1978 - the Court took article 157 TFEU even further beyond its original economic purpose by characterising the right to be free from sex discrimination as a ‘fundamental human right’
Deutsche Telekom AG v Schroder
Courts used its statement in Defrenne (III) as a basis for resolving an arguable conflict between the economic and social aims of Article 157, first identified by Defrenne (II). It must be concluded that the economic aim (of Article 157 TFEU) is secondary to the social aimpursued by the same provision.
5 areas covered by EU sex discrimination
5 areas covered by EU sex discrimination
1. ‘pay’ in employment
2. ‘treatment’ in employment (all treatment other than pay)
3. Vocational training (which includes most university education )
4. Social security and
5. goods and services
Sex discrimination case law covering Pay
Not within ‘pay’
**Defrenne (III) v Sabena **
1978
Key words: dismissal; ETD;field of application of art 157; direct applicability; intervening in an area reserved by (articles 153 & 154 TFEU)
- Court resisted the temptation to bring actual dismissals involving sex discrimination within **‘pay’ **in article 157 TFEU.
- Held that such dismissals can only be challenged under the ETD
- Female flight attendant had **relied on Art 157 **against a term of her contract, requiring Female but not male flight attendants to retire at the age of 40
- Not sufficient to bring such conditions within the field of application of art 157 (equal pay- in cash or in kind)
- impossible to widen the terms of article 157 to the point, first of jeopardising the direct applicability [of the provision] …second, of intervening in an area reserved by (articles 153 & 154 TFEU) to the discretion of the authorities referred to therein
- Art 157 TFEU cannot be interpreted as prescribing, in addition to equal pay, equality in respect of the other working conditions applicable.
Concept of pay in sex discrimination
wide - not just cash - see case law examples
Defined in article 157 as ‘the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment , from his employer”.
Case law covering Pay (sex)
in kind
Garland v British Rail Engineering Limited (1982). Special rail travel facilties to the family of male employees after they retired, but not to female retired employees. Constituted discrimination within the meaning of Art 157.
Case law covering Pay (Sex)
sick pay
Rinner-Kuhn v FWW (1989). female employee chalenged legislation excluding those working no more than 10 hours p/wk from an entitlement to sick pay paid by the employer. Sick pay was within the term ‘pay’ under TFEU art 157
The continued payment of wages to an employee in the event of illness falls within the concept of ‘pay’ within the meaning of Article 157 TFEU
Her employer refused to pay her, citing a provision of the German law that exempted employers from paying for sickness leave when a worker works fewer than 10 hours a week
- pointed to statistics- showing more women than men worked no more than 10 hours
- The Court of Justice held that Article 119 precludes national legislation…
Case law covering Pay (sex)
R v Secretary of State for employment
**R v Secretary of State for employment, ex parte seymour-smith and Perez ** compensation for unfair dismissals
- case on the qualifying period of work before an employee accrues unfair dismissal rights.
- Qualifying period had disproportionate impact on women
- That type of compensation falls within the definition of pay [Art 157].
- Distinction made by the court means that , where national law conflicts with EU law, conditions attached to the compensation for unfair dismissal can be challenged by both public or private sector employees against their employer, by invoking the vertical and horizontal direct effect of Article 157. C**onditions attached to reinstatement or re-engagement **can only be challenged by public sector employees…by **invoking the vertical direct effect of the Recast Equal Treatment Directive. **
Retirement pensions as ‘pay’
(Defrenne)
1/3
Defrenne (I) v Belgium
1971
* female flight attendant relied on Article 157 TFEU to challenge the exclusion of female attendants from Belgian legislation on retirement pensions for civil aviation air crews.
* considerations of social policy.
* A retirement pension established within the framework of a social security scheme laid down by legislation does not constitute consideration which the worker receives indirectly in respect of his employment from his employer
* If the scheme/provision comes from national legisation
Retirement pensions as ‘pay’
2/3
Bilka-Kaufhaus v Weber
* scheme exclued part time workers unless they had worked full-time for at least 15 years
* Female p/t worker invoked 157 TFEU
* alleging that women work more part-time, so they are at a disadvantage.
* contractual rather than statutory nature of the scheme
* the scheme formed an integral part of the contracts of employment between B and its employees.
*It must be concluded that the scheme does not constitute a social security scheme governed directly by statute and thus outside the scope of article 157. Benefits paid to employees under the scheme, therefore, constitute consideration received by the worker from the employer in respect of his employment
* sets out the test for objective justification for indirect discrimination.
Non-discrimination on grounds of age - has horizontal direct effect?
Yes! in Kucukdeveci and Rasmussen- both against private-sectors
Mangold
- The national legislation led to situation where all workers who reach 52, may lawfully until retirement, be offered fixed term contracts of employment - renewed indefinitely.
- This body of workers - on the basis of age only- is in danger of being excluded from the benefit of stable employment (major element in the protection of workers)
- Such legislation goes beyond what is appropriate and necessary in order to attain the objective pursued and cannot be justified
- Deadline for implementing of Directive 2000/78 had not passed.
- According to the Courts, this did not matter and was irrelevant, because “the principle of non-discrimination on grounds of age must thus be regarded as a general principle of community law”.
- Confirmed direct effect
- In certain circumstances Directives where implementation periods have not expired, may nevertheless belp determine the outcome of a case in favour of indviduals befroe the national courts by the reliance on general principles instead (Kukukdeveci also - direct effects of general principles )
Article 19 TFEU
Created an express EU competence to act against discrimination based on certain grounds other than sex and nationality.
- Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
- cannot have direct effect and, on its own, does not prohibit anything
- conditional on action by the Council Harmonisation of laws under Article 19 TFEU requires a unamimos vote of all 27 MS
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