Equality Law Flashcards
Art 157(4) TFEU
Equality between men and women
Art 19 TFEU
General power to prohibit discrimination across a range of areas
Art 153 TFEU
Equality of men and women in the work environment
Art 157 TFEU
Equal pay and now promotion of equality between sexes
Art 79 TFEU
Preventing and combatting all kind of trafficking and sexual abuse of women
Is there a need for cross border movement?
No, can be applicable to wholly internal situations
Who is a worker?
Defined the same as in FMoW
Allonby
- A part-time worker was being paid less than full-time workers
- > extended definition to those on an atypical contract
Treaty of Amsterdam
Art:
141(1) - Equal pay for work of equal value
141(2) - definition of pay
141(2) (a-b) -definition of equal pay
Defrene v Sabena (2)
Female flight attendees had to retire at 40
- A.) Recognised equal pay
- B.) Principle of EP precise enough to be horizontally and vertically direct effect
- C.) Court recognised for first time economic and social aim of treaty
Directive 2006/54
AKA The Recast directive
Directive 2006/54 Art 2(1) (e)
The meaning of pay
Garland
Concessery travel facilities granted to ex-employees is pay
Rinner-Khun
Sick pay counts as pay
Barber
Redundancy pay counts as pay
Seymour-Smith
Unfair dismissal compensation counts as pay
Gillespie
Maternity benefits count as pay
Art 7 Social Security
Are retirement pensions included in pay?
Griesmar
Not acceptable for one gender to have a different retirement age to another
Enderby
Different medical professionals were not work of equal value
Brunnhofer
The fact that male and female employees are classified in the same job category is not in itself sufficient for stating that it is work of equal value
- It’s only an indication
Where does the burden of proof lie?
Must prove they are receiving lower pay than that of a colleague of the opposite sex
-> and that they are performing work of equal value of that comparator
Indirect discrimination:
If a substantially higher proportion of opposite sex are affected by a neutral provision, criterion or practice
-> Unless it can be justified with objective factors unrelated to sex
Jenkins
Difference in remuneration between FT and PT workers
-> more women worked PT and argued it was indirect discrimination
However, it was justified under objective factors and help not to be discriminatory
Bilka-Kaufhaus
Test for objective justification
“If the undertaking is able to show that its paid practice may be explained by objectively justified factors unrelated to any grounds of sex …”
Kallri
rejection of application for police training due to insufficient height + Greek government argued it was necessary
-> Held that aims could be achieved in a more proportionate manner
Equal Treatment:
Directive 2006/54/EC
Directive 2010/41/EU
Directive 2006/54/EC Art 2(1) + 2(2)
Sex discrimination
Exception to equal treatment:
Helping disadvantaged sex and positive action
Commission v France
Law which permitted collective agreements to provide special rights for women was unjustified
->France was unable to show that it reduced inequality
Kalanke
Where equally qualified men and women are candidates for a position with fewer women
-> automatically giving priority to women is direct discrimination
Marschall
Similar to Kalanke
-> Additional provision that if male candidate was more qualified they should get the post, then the automatic priority to women is no a breach
Directive 92/85/EEC (The pregnancy directive)
Encourage improvements in safety and health at work and determines the rights of pregnant and breastfeeding worker
- > No need for comparison
- > Ensures minimum period of 14 weeks
Webb
Dismissal of a pregnant worker for reasons of her pregnancy -> Not allowed
Melgar
If non renewal of a contract is motivated by the workers pregnancy -> Direct discrimination
Busch
Employee is under no obligation to inform employer that she is pregnant
-> Employer cannot rescind consent to return to work
Hertz
Dismissal due to repeated absences due to pregnancy illnesses does not apply because male workers can be dismissed in similar circumstances
Brown
- Dismissal resulting from a pregnancy-related illness that started during maternity leave is direct discrimination
- > Distinguished from Hertz
2010/18/EU Directive (Parental Leave Directve)
All workers (men/women) can take time off to look after children up to the age of 8
Mayr
Prohibits discrimination against a woman undergoing IVF but not yet carrying a child
CD and Z
In order to receive protection same woman has to undergo IVF, get pregnant and give birth
Recast Directive Art 14 (2)
MS can exempt certain jobs from ET when it is not related to sex itself -> must be legitimate and proportionate
Sirdar
Woman refused a position in marines
ECJ: National authorities have certain degree of discretion when adopting measures which they consider to be necessary in order to guarantee public security
Marshall
Compulsory earlier retirement for women than for men -> direct discrimination
