Social Policy - Sex Discrimination

Question 1

Structure

Answer 1

1. General Aim of Anti-Discriminatroy Legislation
2. Does the Issue concern Pay or Treatment
3. Is it Direct or Indirect Discrimination
4. Can the Discrimination be Justified?

Question 2

General aim of anti-discrimination legislation is to…

Answer 2

DEFRENNE v SABENE

Promote fairness, equality and economic growth within the community

Question 3

Pay Art…

Answer 3

Art.157 TFEU - Equal Pay for Equal Work / Work of Equal Value

Question 4

Pay - Travel concessions for retired employees held to be pay

Answer 4

GARLAND v BRITISH RAIL

Question 5

Pay - Statutory Redundancy Pay held to be “pay”

Answer 5

BARBER v GUARDIAN

Question 6

Pay - Pensions Payments held to be “pay”

Answer 6

BILKA

Question 7

Pay - Compensation for unlawful dismissal held to be “pay”

Answer 7

EX P SEYMOUR-SMITH

Question 8

Pay - Statutory social security pensions not “pay”

Answer 8

DEFRENNE

Question 9

Treatment…

Answer 9

Recast Directive 2006/54

Question 10

Direct Discrimination - One person is treated unfavourably on the grounds of sex than the other is/was/would/have been treated in a comparable situation

Answer 10

Art.2(1)(a) Recast Directive

Question 11

Direct Discrimination - Dismissal due to pregnancy

Answer 11

WEBB v EMO

Question 12

Direct Discrimination - Adverse treatment due to pregnancy

Answer 12

DEKKER

Question 13

Direct Discrimination - Male cabin crew paid more

Answer 13

DEFRENNE

Question 14

Direct Discrimination - Unfavourable re pregancy/maternity

Answer 14

Art.2(2)(c) Recast Directive

Question 15

Indirect Discrimination - Where apparently neutral provision, criterion or practice puts people of one sex at a disadvantage unless objectively justified by legitimate aim, and the means of achieving aim are appropriate and necessary

Answer 15

Art.2(1)(b) Recast Directive

Question 16

Defence to Direct Discrimination - Genuine Occupational Requirement

Answer 16

Art.14(2) Recast Directive

Justified (Appropriate and Necessary for Objective) and Proportionate

Question 17

Defence to Direct Discrimination - Must not go beyond what is required / proportionate

Answer 17

SKIMMED MILK POWDER

Question 18

Defence to Direct Discrimination - Derogations from equality directive must be interpreted strictly; it is up to the national court to evaluate the reasoning

Answer 18

JOHNSON v CC

Question 19

Positive Discrimination - With a view to equality in practice, positive action allowed with regard to careers to promote underrepresented sex - Member states may permit positive action to ensure equality between men and women in working life

Answer 19

Art.157(4) TFEU and Art.3 Recast Directive

Question 20

Positive Discrimination - Favour less qualified women – NO

Answer 20

ABRAHAMSON

Question 21

Positive Discrimination - Automatically favour equally qualified women – NO

Answer 21

KALANKE

Question 22

Positive Discrimination - For equal candidates, rebuttable presumption in favour of woman; unless man has overriding characteristics

Answer 22

HELLMUT MARSCHALL

Question 23

Indirect Discrimination

Answer 23

Art.2(1)(b) Recast Directive and Art.19 Recast Directive (Burden of Proof)

Question 24

Indirect Discrimination - Objective Justification for a Measure taken by an Employer against an Employee - Pay or Treatment - The difference in treatment must..

Answer 24

(N.A.N)

• Correspond to a real Need of the employer
• Be Appropriate to achieving the objective
• Be Necessary to that end

Question 25

Indirect Discrimination - Objective Justification for State Measure - State must show..

Answer 25

• Reflects a legitimate aim of social policy
• Aim is unrelated to any sex-based discrimination
• The means is suitable for attaining the aim

Question 26

Indirect Discrimination - Member State to protect Employees who seek to enforce their Right to Equal Treatment from Victimisation by their Employer

Answer 26

Art.24 Recast Directive