Social Policy Flashcards
What are the two most important justifications for the EU to pursue a social policy?
That social policy is desirable per se and that it will combat against ‘social dumping’.
What is the main Treaty Article that deals with equal pay between men and women?
Article 157 TFEU
Which two cases held that discrimination related to pregnancy constitutes direct discrimination?
Dekker in the case of deciding not to employ a woman because she is pregnant, and Webb in the case of dismissing a woman because she is pregnant.
In which case did the ECJ determine that paying part-time workers a lower hourly rate than full-time workers was not itself indirect discrimination, and why?
Jenkins: the reasoning was that it would not be indirect discrimination if it could be objectively justified and was in no way related to any discrimination based on sex.
What is the test for justifying an employer’s measure that may be indirectly discriminatory?
Bilka-Kaufhaus, it must: (a) correspond to a real need on the part of the employer; (b) be appropriate for achieving the objective pursued; and (c) be necessary to that end.
How is the Bilka-Kaufhaus test reformulated for cases involving State policies?
(a) The law reflects a legitimate aim of the State’s social policy; (b) the aim is unrelated to any discrimination based on sex); and (c) it is a means suitable for achieving that aim. Example of application in Seymour-Smith.
Which case confirmed that Article 157 TFEU is limited to discrimination in relation to pay?
Defrenne (No 3)
Which case confirmed that travel concessions given to family workers of retired employees did constitute ‘pay’ and why?
Garland: it was because any consideration, whether immediate or future, provided that the worker received it, directly or indirectly, in respect of their employment from their employer, was ‘pay’.
Which two cases involve payments on termination of employment?
Barber, which held that statutory redundancy pay was ‘pay’. And Seymour-Smith, which held that compensation for unfair dismissal also constituted pay.
Which three cases show the complexity in the case of pensions?
Defrenne (No 1), Bilka-Kaufhaus and Barber.
Which pay held that discriminatory retirement ages breached the old Equal Treatment Directive?
Marshall
Which Article of the recast Directive concerns justifications for treatment on a characteristic related to sex, and when would such treatment be justified?
Article 14(2): (a) if the reservation is a genuine and determining occupational requirement and (b) that the State’s actions are proportionate.
Which case stated that any derogation from the principle of equality must be interpreted strictly?
Johnston
Which two cases showed examples of forms of positive action that are not permitted by the EU?
Abrahamsson, in the case of favouring women even when they are less qualified than men; Kalanke, which concerned favouring women when they are equally qualified as men.
Which case shows the only type of positive action permitted by the EU?
Hellmut Marschall, cases where men and women are equally qualified and women should be favoured, but only with the presumption rebuttable by the man by his pointing out of his overriding characteristics.
