Social Policy - Sex Discrimination

Question 1

Will gratuitous work benefits, such as travel concessions, be deemed ‘pay’? Case.

Answer 1

Yes - Garland v British Rail.

Question 2

Will statutory redundancy pay be deemed ‘pay’? Case.

Answer 2

Yes - Barber v Guardian.

Question 3

Will pension payments be deemed ‘pay’? Case.

Answer 3

Yes - Bilka-Kaufhaus.

Question 4

Will damages for unfair dismissal be deemed ‘pay’? Case.

Answer 4

Yes - ex parte Seymour-Smith.

Question 5

Give 3 examples of direct sex discrimination. Cases.

Answer 5

1. Sacking for pregnancy - Webb v EMO.
2. Refusal to hire for pregnancy - Dekker.
3. Paying male staff more than female staff - Defrenne v SABENA.

Question 6

What presumption is raised for positive action, and how can it be rebutted? Case.

Answer 6

Where equally-qualified man and woman apply, presumption that woman should be favoured, unless man has ‘overriding characteristics’. Helmut-Marschall.

Question 7

Can a less-qualified woman be hired over a more-qualified man?

Answer 7

No - Abrahamson & Anderson.

Question 8

What case gave guidance on how the justification of indirect discrimination can be assessed? What did it say?

Answer 8

Bilka-Kaufhaus:

1. Burden on claimant to prove more persons of their sex are adversely affected. Matter of fact - requires stats/numbers.
2. Burden then on employer to show measure is proportionate.

Question 9

In addition to the Recast Directive, what other Directives support the EU’s social policy? Against what type of discrimination do they legislate?

Answer 9

1. Framework Directive - religion, beliefs, disability, age, sexual orientation.
2. Race Directive - racial or ethnic origin.