Equality In EU Law

Question 1

How has EU Law impacted member states in age equality?

Answer 1

The EU has made significant progress through the Framework Directive on Employment Equality.

Prior to the Equality Act 2010 there was no age discrimination legislation in the UK.

Question 2

Where is the EU’s ability to combat discrimination found?

Answer 2

Article 19 TFEU.

Article 21 EUCFR also prohibits age discrimination.

Question 3

Why is age discrimination an important issue?

Answer 3

Ageism has become a real issue - 74% of UK under 25s have experienced it and over 90% of over 60s.

The issue is worsened by false stereotypes of people of a particular age bracket.

Question 4

What does Muir believe the challenges facing the ECJ are?

Answer 4

The delicate link between age and capabilities.

The fine balance between retirement and the prohibition of age discrimination.

Question 5

What did the UKSC find in Seldon [2012]?

Answer 5

Everyone will experience being part of being a different age group, there is no escaping it.

Everyone will benefit and suffer detrimental treatment throughout their lifecycle.

Question 6

What 4 areas does the Employment Equality Directive cover?

Answer 6

1. Direct discrimination.
2. Indirect discrimination.
3. Harassment.
4. Instructions to discriminate.

Question 7

What is the key tension in the Directive?

Answer 7

Tension between Article 2 and Article 6;

• Article 2 states that any measure or practice which differentiates between employees on grounds of their age is illegal.
• Article 6 states that employers can use discriminatory measures to achieve collective goals.

Question 8

What are the 3 ways of framing the age discrimination issue?

Answer 8

1. Transnational market externalities - the best person should get the job. Anti-discrimination law makes the market more competitive.
2. Collective realisation of common goods - the EU should work to secure social justice.
3. Creation of new forms of mutual recognition and respect - anti-discrimination law requires us to take account of people in ways we didn’t before.

Question 9

What is the issue with the three approaches?

Answer 9

Different aspects appear in different areas of anti-discrimination law.

Question 10

Which 3 categories do cases on age discrimination fall into and what are the cases?

Answer 10

1. Cases on whether member states can subject age groups to less favourable working conditions because they are more vulnerable to unemployment (job security) - Mangold/Kucukdeveci.
2. Different contributions to remuneration (pensions and rates of pay) - Experian/Hennigs.
3. Compulsory retirement - Commission v Hungary/Rosenbladt.

Question 11

What were the facts and decision in Mangold?

Answer 11

German legislation allowed people over 52 to be placed on fixed term contracts.

The German government argued that getting unemployed older people into the workplace was important.

The Court found the measure to be disproportionate as it failed to consider the personal situation of the worker.

Question 12

What were the facts and decision of Kucukdeveci?

Answer 12

A German law made it easier to sack people under the age of 25.

K was sacked after 10 years of work.

The court found that the measure paid no respect to K’s length of service, and that it penalised school leavers whilst protecting University graduates. It was inappropriate.

Question 13

What were the facts and decision of Hennigs?

Answer 13

A German system which paid based on the age you began work in the public sector was changed to reward experience.

Transitional regimes are completely legitimate.

When determining pay, employers can look at 3 things;

1. Experience - discriminates people early on in their career and protects incumbents.
2. Performance.
3. Nature of the activity.

This fits the transnational market externalities view of age discrimination law.

Question 14

What were the facts and decision of Experian?

Answer 14

Experian’s pension scheme allowed for differential contribution.

It was claimed that over 45s were getting paid 4% more than those who were younger.

The ECJ defended pension scheme differentiation.

Question 15

Why is the decision in Experian controversial?

Answer 15

The grounds given for allowing pension scheme differentiation seem wrong;

1. It enables people entering work late to build up savings (it encourages free-riding by older people)
2. It allows younger workers to have more disposable wages - this is wrong, they should be allowed to save towards their pensions.
3. There is an increased risk of death and ill health in old people - this is flawed logic too.
   * All of these are based on problematic assumptions on the lifecycle.

Question 16

What were the facts and decision of Commission v Hungary?

Answer 16

The Hungarian government passed legislation requiring judges aged 62 or over to retire (with 6 months notice). Any judges younger than 62 could work on until 65.

The reason given for this was that it standardises retirement and balances the age structure of the legal profession.

The ECJ found the measure to be disproportionate as there were no transitional provisions.

Question 17

What were the facts and decision in Rosenbladt?

Answer 17

A German cleaning worker was paid very little, and workers in the cleaning sector had to retire at 65. She challenged this as she simply did not have enough money to live.

The ECJ stated that the measure was proportionate as compulsory retirement promotes intergenerational equality.

However R was not stopping anybody from getting a job!

Question 18

What is the unsatisfactory position relating to compulsory retirement?

Answer 18

Compulsory retirement is allowed where;

1. There is sufficient time for people to organise pensions.
2. Older people can try and find new jobs to supplement their pensions.

This seems very wrong.

Question 19

What is the importance of Article 4 Employment Equality directive?

Answer 19

It allows for difference of treatment where a characteristic is a genuine and determining occupational requirement;

Wolf - firefighters require high physical capabilities, related to age and so a maximum age of 30 was accepted.

Prigge - airline pilots require high physical health and so age requirements could be justified.

Question 20

Suk - why is the US different?

Answer 20

The US values individual autonomy with regard to retirement and choice to work.

Mandatory maternity leave and mandatory retirement are deemed discriminatory.

Question 21

What is the key tension according to Suk?

Answer 21

The tradeoff between protecting individual autonomy (US) and combating the social and economic forces that undermine equality (EU).

Question 22

What is Suk’s conclusion on the European model?

Answer 22

It is too paternalistic and depends too much on stereotypical views of the lifecycle.

The EU is only becoming more pluralist and so mandatory retirement in particular may need to be rethought (particularly given the state of the law following Experian and Rosenbladt).

‘For those who love to work, a good life may not include retirement’ - take Joe Flom.

The uniform laws of the US treat everybody equally.