Sex Discrimination

Question 1

Which Article of the TFEU directly applies to sex discrimination?

Answer 1

Article 157 TFEU

Question 2

Which Article of TFEU has extended the equality principle to gender, ethnicity, religious belief, disability and age?

Answer 2

Article 19 TFEU

Question 3

Which Article of TFEU allows MS to positively discriminate to further eliminate sex discrimination in employment?

Answer 3

Article 157(4) TFEU

Question 4

Which directive would form the basis of a claim in sex discrimination?

Answer 4

Equal Treatment Directive 2006/54

Question 5

Articles 2(a) and (b) of the Equal Treatment Directive 2006/54 define what?

Answer 5

Direct and indirect discrimination

Question 6

In which case was a German law excluding sick pay from those that worked less than 10 hours pw illegal?

Answer 6

Rinner-Kuhn

Question 7

In Jenkins v (Kingsgate Clothing Productions) Ltd, the defendant was paying p/t workers less than f/t workers for the same amount of work. What did the CJ find?

Answer 7

The CJ said paying p/t workers a lower wage was not in itself illegal if there were objective justification for doing so in no way linked to sex discrimination. The Court also held it was up to the national courts to decide what was an objective justification.

Question 8

In which case did the CJ revisit ‘objective justification’? What was the three stage test they came up with?

Answer 8

The three stage test in Bilka-Kaufaus v Karin Weber:

1. Correspond to the real need of business
2. Appropriate in relation to objective pursued
3. Necessary to achieve those objectives

Question 9

Which case tells us that you may not discriminate against transgenders?

Answer 9

P v S and Cornwall County Council

Question 10

In Grant v South-West Trains non-married were couples were not allowed travel benefits and the Court upheld the defence. But what Directive and Article provision now excludes discrimination against sexual orientation?

Answer 10

Article 19 TFEU and Directive 2000/78

Question 11

Which case gave direct effect to Article 157 TFEU?

Answer 11

Defrenne v SABENA (No 2)

Question 12

How does Article 157 TFEU define pay?

Answer 12

Any type of consideration in respect of a person’s employment

Question 13

What was considered pay in Garland v British Rail Engineering?

Answer 13

Travel facilities (even though they weren’t part of any formal contract and arose after retirement)

Question 14

Which directive excludes statutory pensions from the definition of pay in Article 157 TFEU? Why?

Answer 14

Social Security Directive. Because a state pension is connected to a person’s legal rights not their contributions during employment.

Question 15

Which case illustrates that sex discrimination cases are not always brought successfully by women?

Answer 15

Barber v Guardian Royal Exchange Assurance Group

Question 16

What was held to constitute pay in the case of Tenoever?

Answer 16

Widow’s pension

Question 17

What was pay in Worringham v Lloyds Bank?

Answer 17

Occupational pension contributions made by Lloyds for employees u25.

Question 18

In which two ways does Directive 75/117 define ‘equal work’?

Answer 18

1. Same actual work

2. Work of equal value

Question 19

What dubious test did the CJ come up with in Angelstelten to deduce whether employees were undertaking the same work?

Answer 19

They would look at employee’s professional training.

Question 20

How might a ‘job classification system’ help compare jobs?

Answer 20

A ‘job classification system’ brackets jobs into bands by objective criteria that enable you to deduce whether one job is equal to another in value.

Question 21

What does Article 4 Directive 2006/54 make clear about ‘job classification systems’ for them to work properly?

Answer 21

The criteria upon which they grade jobs should be non-discriminatory.

Question 22

What was contentious about the job classification system in Rummler v Dato-Druck GmbH? What did the CJ rule on it?

Answer 22

One of the criteria was physical strength. The CJ said it this criterion was not discriminatory in nature so long as it was objectively measurable amount of physical strength was required to perform the role.

Question 23

Which case tells us that protection against victimisation extends to job references?

Answer 23

Coote v Granada Hospitality Ltd

Question 24

There are three derogations to the equal treatment principle. What are they?

Answer 24

1. Where sex is the determining factor in performing the role;
2. Protection of women;
3. Positive discrimination

Question 25

Why did the CJ allow women to be excluded from the jobs in question in Sirdar v The Army Board but said they must be allowed in Kreil v Bundesrepublik Deutschland?

Answer 25

In Sirdar, the jobs were front-line marines, whereas in Kreil there was an outright ban of women from all military posts.

Question 26

In Johnston v Chief Constable of Royal Ulster Constabulary, the CJ upheld that women could be excluded from police posts requiring them to hold firearms, which might make them vulnerable, however, how did the CJ limit their judgment?

Answer 26

1. It should be considered whether it is proportionate to terminate a woman’s contract on the basis of safety;
2. This judgment should be reviewed as society develops.

Question 27

In which case were lump sum payments made by employers to their employees on maternity leave upheld as non-discriminatory?

Answer 27

Abdoulaye v Renault

Question 28

In which case was a prohibition on night work for women held to be discriminatory?

Answer 28

Stoeckel

Question 29

In which case was it held that positive discrimination cannot justify selecting a woman for a job over a more highly qualified man?

Answer 29

Abrahammson and Anderson v Fogelqvist

Question 30

Which case overturned the use of gender as a risk factor in calculating insurance premiums?

Answer 30

Test-Achtats