Topic 5: Case Law Flashcards
Case C-342/93 Gillespie v Health and Social Services Board [1996] ECR 475
defines unlawful discrimination as:
“the application of different rules to comparable situations or the application of the same rule to different situations…”
Case C-303/06 Coleman v Attridge Law[2008] IRLR 722, at para 56:
discrimination by association
Lady worked for a solicitors firm, her child was disabled and she claimed she was being discriminated against by association
She was not being treated equally to comparable parents
“[w]here an employer treats an employee who is not himself disabled less favourably than another employee is, has been or would be treated in a comparable situation, it is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).”
Kulikaoskas v Macduff [2011] ICR 48
discrimination by association
it held that the relevant UK legislation did not protect a male employee who alleged he was dismissed as a consequence of his partner’s pregnancy. It concluded that no associative discrimination as a result of an employee’s partners pregnancy arose and that as a matter of EU law pregnancy was a feature unique to women which deserved special protection.
Flynn v Power [1985] IR 648
Exenptions to the prohibition on discrimination
Eileen Roche was a schoolteacher in County Wexford, Ireland, who was dismissed in 1982 for cohabiting with a married man. In 1985, the High Court ruled this did not constitute unfair dismissal.
her dismissal was not due to her pregnancy per se but rather to her non-marital relationship.
Case C-450/ 93 Kalanke ECR I-3051
Positive action
State of Bremen provision which permitted positive discrimination in the event of a tie-break situation where a woman was equally qualified & where women were underrepresented in the workforce.
Under this provision, the State promoted a woman instead of Mr Kalanke to the section manager post in the parks department.
Kalanke claimed that he was discriminated against on the grounds of sex contrary to Article 2(1) of the then Directive 76/207 (Art.14 Equality Directive).
State of Bremen relied on the derogation under Article 2(4).
The Court acknowledged that Article 2(4) did allow for national measures to be used to give women an advantage to enable them to compete on an equal footing with men.
In Kalanke, the Court rule that the measures used by the State of Bremen provided women with an ‘absolute and unconditional priority for appointment or promotion’ went beyond the exceptions envisaged in Article 2(4).
The Court held that the State of Bremen system “substitutes for equality of opportunity as envisaged in Article 2(4) the result which is only to be arrived at by providing equality of opportunity”.
Nathan v Bailey Gibson [1998] 2 IR 162
indirect discrimination and objective justification
“A requirement, relating to employment or membership of a body which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply in substantially higher numbers may amount to indirect discrimination.”
Southern Health Board v Mitchell [2001] ELR 201:
“The first requirement is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination…It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.
Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Bötel [1992] ECR I-3589, at para 12, the ECJ has defined “pay” in an extremely broad manner, so that it includes:
equal pay
“…any consideration, whether in cash or in kind, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment from his employer, and irrespective of whether the worker receives it under a contract of employment, by virtue of legislative provisions or on a voluntary basis”.
This would include things like sick pay, concessions, bonuses and so on.
Case C-309/97 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse [1999] ECR 2865 (“Austrian Psychotherapists Case”)
The definition of “like work” requires that a complainant seeking equal pay must be able to compare his/her work to that of another person.
The definition of “like work” requires that a complainant seeking equal pay must be able to compare his/her work to that of another person.
Medical Council v Barrington EE 9/1988 (Office of the Director of Equality Investigations)
gender discrimination
single female who alleged that she was asked at an interview whether or not she was thinking of getting married; not asked of male/married female candidates
Trinity College Dublin v McGhee EE 1/1989 (Office of the Director of Equality Investigations).
gender discrimination
asked whether or not she was planning to have any more children, and about her husband’s attitude to her applying for the job
Dublin City University v Horgan EDA 715/2007 (Labour Court).
gender discrimination
romotion interview; on paper best candidate (e.g. her referees rejected) but only men successful; Shifted burden of proof and DCU failed to discharge
Mere denials of discriminatory motive ‘must be approached with caution’, given the possibility of unconscious or inadvertent discrimination;
DCU to set out clearly minimum requirement for gender composition of interview panels; requirement to keep notes for 12 months
Rotunda v Gleeson [2000] ELR 206 (Labour Court).
gender discrimination
“One of the interviewers stated that the appellant’s major career development appeared to have occurred during the years when she had her babies. This remark, whether intended as complimentary or not, clearly identifies the appellant by reason of her sex and could give rise to a prima facie finding of discrimination”
Hannon v First Direct Logistics [2011] 22 ELR 215
transgender discrimination – male to female transsexual claim for gender & disability discrimination
DEC-E2007- 064 Savage v Federal Security
gender discrimination
ponytail too long to fit under cap- female would have been treated the same (neat appearance essential for security guards)
