Sex Discrimination Flashcards
Defrenne v Sabena
Sabena, nelgian national airline, employed both men and female cabin crew, but the male crew were paid more than female. Allowed under Belgium national law. No difference in their duties. Direct discrimination prohibited under Art 157 (which was at the time art 119)
Sabena (No. 3) Sabena also imposed an upper age limit of 40 for female cabin crew when no such limit existed for males. After successfully challenging equal pay claim Defrenne invoked art. 157 (119 at time) to challenge the discriminatory retirement policy. Held limited to discrimination in relation to pay and did not cover discriminatory retirement ages (at time no legislation re equal treatment in general)
Garland
Upon retirement male employees were granted travel concessions for themselves, their wives and dependent children; not offered to retired female employees; held that travel concessions amount to pay not required to be contractual entitlement constitute pay.
RATIO: Pay is to include any consideration, whether immediate or future, provided that the worker received it, directly or indirectly, in respect of his employment, from his employment. The fact that it is not a contractual entitlement is irrelevant.
Barber
‘contracted out’ scheme whereby employees allowed under statute to contract out of state pension and replace with a pension paid by employer in substitute to state pension. Barber had contracted out. UK law allowed employers to set different occupational pension entitlement ages; Barber challenged fact pension payment upon redundancy was given at 55 for men and 50 for women; Barber (a man) was made redundant at 52 and claimed sex discrimination; reference was made to ECJ about violation of EU law
RATIO: Redundancy payment by employer cannot cease to constitute a form of pay on the sole ground that it is a statutory or ex gratia payment (pension/redundancy payments constitute pay). The fact that a benefit is in the nature of pay cannot be called into question where the worker is entitled to receive the benefit in question from his employer by reason of the existence of the employment relationship
Bilka-Kaufhaus
Occupational pension scheme set up pursuant to a private agreement within the firm. Payments into the scheme were paid only by the employer (not state) and scheme was meant to supplement the state scheme.
Held these payments could fall within meaning of pay – as contractual and not statutory payments made could be pay.
employer must show that the measure:
Corresponds to a legitimate aim (real need (‘N’) on part of employer);
Is an appropriate (A) means of achieving the objective; and
Is necessary (N)
Defrenne v Belgium (no. 1)
ECJ considered a scheme whereby compulsory payments were made by an employer into the state social security scheme. Employer paid different amounts into the scheme depending on whether employee was male or female. Belgian law required employer to make these contributions and set out basis on which they were paid. Held not to constitute pay RATIO: Social security payments do not constitute pay and do not fall under Art 157 TFEU
Ex p Seymour-Smith
UK gov had by statutory instrument increased the qualifying period for unfair dismissal compensation under the Employment Protection Act from one to two years. Applicants argued that this infringed art. 157 as it discriminated indirectly against women who were less likely than men to satisfy the qualifying period of two years. Gov argued that unfair dismissal compensation did not constitute pay.
ECJ repeated reasoning in Barber that money received by an employee will be pay provided it is received albeit indirectly in respect of his employment from his employer. did not matter that payment received after employment ended. Compensation designed to give employee what he would have earned if not unlawfully terminated as such it is pay under art. 157
Dekker
Dekker applied for a position and informed her prospective employer that she was 3 months pregnant; despite her potential employer considering her to be the most qualified for the position, she was rejected on the grounds of her pregnancy; claimed damages under Equal Treatment Directive.
RATIO: The decision not to hire a woman because she is pregnant amounts to direct discrimination
Jenkins v Kingsgate
Part-time workers, predominately female, were paid lower hourly rate than full time workers, who were predominantly male; this amounted to indirect discrimination unless the lower rate could be objectively justified.
RATIO: If a lower rate which results in one gender being discriminated over the other, this will amount to indirect discrimination unless it can be objectively justified i/e by showing that better rates are necessary to attract full-time workers, irrespective of their sex).
Skimmed-milk powder case
There was a surplus of milk in the Union; Council adopted Regulation requiring producers of animal feed to buy skimmed milk rather than soya milk although skimmed milk cost 3x as much; ECJ held the Regulation was invalid as it breached the principle of proportionality and principle of equality (an extra burden was placed on the agricultural industry but only benefitted dairy farmers)
RATIO: legislation which breaches the principle of proportionality – i.e whose aims can be achieved by other less burdensome measures – will not be valid.
Legislation which leads to unequal treatment of individuals which cannot be objectively justified will not be valid.
Commission v UK
Case revolved around whether midwives had to be women to satisfy occupational requirement; court held that ‘at the present time personal sensitivities may play an important role in relations between midwife and patient’ and therefore reserving the job for woman was justified.
RATIO: An exception to the principle of equal treatment is where an occupational requirement makes it necessary to hire a man or a woman; this is a dynamic concept (midwifery now open to men as well).
Johnston
Woman ceased to be employed as full time members of the RUC Reserve; RUC defended the policy on grounds that they had decided full time workers would be issued with firearms and it wasn’t appropriate for woman to carry firearms as it was less acceptable for woman to be at risk and they were more easily overpowered
RATIO: Any derogation from the principle of equality must be strictly interpreted; both proportionality and whether the reasoning is well-founded falls on national courts to assess.
However, ECJ did suggest that may be more proportionate to reassign the women concerned to other duties. MS should review periodically to ensure the use of this exception remained appropriate.
Abrahamsson and Anderson
Me Anderson was slightly better qualified than 3 other women candidate for a university position in Sweden, however the university policy was to hire sufficiently qualified underrepresented groups, therefore the position was offered to one of the female candidates and then another upon rejection by the first candidate.
RATIO: It is not permitted to hire a woman if she is less qualified. This will be the case even if the woman is suitably qualified for the post and the difference between her and the male candidate is not substantial.
Kalanke
Mr Kalanke and a woman were shortlisted for promotion to a management position in the city’s parks department and equally qualified; council’s rules gave automatic priority. If equally qualified, to women in sectors where they were underrepresented; held to amount to sex discrimination.
RATIO: where a woman and man are equally qualified, it is unlawful for the woman to be favoured.
Hellmut Marschall
Mr Marschall was a teacher; applied for promotion but a woman got it instead of him; school’s rules allowed for promotion of women ‘unless reasons specific to an individual candidate tilt the balance in his favour’; held to be valid ‘saving clause’ and was a lawful form of positive action as still allowed for objective factors specific to a male candidate to be considered
RATIO: where a man and woman are equally qualified for a job, there is a presumption that the woman should be favoured but that presumption can be rebutted by the man by his pointing out overriding characteristics that he possesses.
Bilka- Kaufhaus
Full time workers qualified to take part in employer’s pensions scheme, but part time workers did not; employers justified this on the basis that they were actively discouraging part time work and trying to encourage full time work; question also arose whether payments into contractual occupational pension scheme constituted pay; Von Hartz won claim, showing that there is a strict application of the legitimate aim test
Ratio: the initial burden is on the claimant to show that more persons of their own sex are adversely affected. Once this is proven the burden shifts to the employer to justify the measure on the grounds of a legitimate aim. The employer must satisfy the 3 criteria. A) correspond to a real need on part of employer; b) appropriate to achieving the objective pursued; and c) be necessary to that end
Pension payments which are contractual and not statutory will be considered pay
