W8 Anti Discrimination

Question 1

What is the main legal basis for prohibition on discrimination?

Answer 1

Art 21(1) of Charter of Fundamental Rights.
Includes sex, age, disability, sexual orientation.

Question 2

Art 21(1) Charter of Fundamental Human Rights

Answer 2

Prohibits discrimination on basis of sex, age (mostly), disability, and sexual orientation

Question 3

What is the legal basis for equal pay?

Answer 3

Article 157 TFEU

Question 4

Article 157 TFEU

Answer 4

Equal pay across genders for equal work

Question 5

What is the legal basis for equal treatment in the workplace?

Answer 5

Directive 2006/54

Question 6

Directive 2006/54

Answer 6

Equal treatment in the workplace
Defines direct discrimination
Prevents automatic positive discrimination

Question 7

Directive 2006/54 vs Article 157 TFEU

Answer 7

If it’s a pay dispute, use Art 157 (which has direct effect). If it’s a treatment dispute, use Directive 2006 (indirect effect)

Question 8

Directive 92/85

Answer 8

Rights of pregnant workers and working mothers

Question 9

Directive 2019/1158

Answer 9

Work-life balance for parents and carers

Question 10

Directive 2000/43

Answer 10

Race and ethnic origin
Prohibition of discrimination on grounds of race or ethnic origin (wide scope)
Direct and indirect discrimination, harassment
Exceptions

Question 11

Directive 2000/78 Framework Directive

Answer 11

Disability, age, religion, sexual orientation

Question 12

C-157/15 Achbita

Answer 12

Facts: Belgian case banning wearing of religious symbols in the workplace, adopted after an employee began wearing a Muslim headscarf.Court ruled the text of the policy was not direct discrimination, but if only applied to some religions in practice, then it is indirect discrimination. Court ruled that direct discrimination cannot be justified; indirect discrimination can be justified if proportionate and in pursuit of a legitimate aim.

Significance: Direct vs indirect discrimination

Question 13

Defrenne v Sabena No 2

Answer 13

Facts: Defrenne worked for Belgian airline Sabena, and was paid less than her male colleagues. Article 157 included a provision for equal pay. CJEU confirmed treaty articles had direct horizontal effect.

Significance: Example of direct horizontal effect of treaty articles. Confirms scope of direct effect of Art 157.

Question 14

What qualifies as pay for purposes of equal pay under Art 157?

Answer 14

Anything granted in respect of employment. Auth: Garland

Question 15

Case 12/81 Garland v British Rail Engineering

Answer 15

Facts: British rail company provided retired male employees with special travel perks for themselves, partners, and dependents - this was not part of employment contracts. Retired female workers were not provided with the same benefit. Confirmed to be discriminatory, and that travel benefits were considered pay for the purposes of equal pay, since it was in contemplation of employment.

Significance: Wide interpretation of “pay” for equal pay - anything provided in exchange for work.

Question 16

171/88 Rinner Kuhn

Answer 16

Facts: German legislation permitted employers to not pay sick pay to workers whose normal hours were less than 10 hours/week or 45 hours/month. Was found to disproportionately affect women over men, and thus indirectly discriminatory, and would require justification/proportionality.

Significance: Sick pay qualifies as pay under Art 157. Example of discrimination in fact but not in law.

Question 17

C-167 Seymour Smith

Answer 17

Facts: UK case. Legislation said that protection against unfair dismissal only applied to employees who had been continuously employed for 2+ years. Argued that this disproportionately affected women. Preliminary ruling said that the national court would need to confirm if this was statistically true, and if so, the legislation was indirectly discriminatory, and the MS would need to justify it on legitimate grounds unrelated to discrimination, and must be proportionate.

Significance: Pay for unfair dismissal qualifies as pay under Art 157, but the right to be re-instated falls under the equal treatment directive. For indirect discrimination: must establish numerical discrepancy between genders in the neutral criteria, then the burden of proof moves to the MS/employer to prove an objective justification. There’s no exact threshold for “disproportionate” - just “considerably” different effect on the genders.

Question 18

C-170/84 Bilka-Kaufhaus

Answer 18

Facts: Employer excluded part-time workers from their pension scheme, which disproportionately affected women. Was indirect discrimination but could be justified, such as if the company wanted to employ as few part-time workers as possible due to a real business need.

Significance: Occupational pensions qualify as pay. Example of objective justification for indirect discrimination.

Question 19

C-262/88 Barber

Answer 19

Facts: British man made redundant did not have access to his employer pension due to his age. Pension age was older for men than for women. Questions: 1) is pension pay under equal pay or equal treatment? 2) Is equal pay infringed where a woman would receive immediate access to her pension but a man in the same circumstances would not? CJEU ruled that pension is pay, and this policy infringed equal pay. Equality in pay must be applied to each aspect of pay individually, not a holistic assessment of sum of all benefits (as that’s too onerous for courts).

Significance: Pension is pay, a higher pension age for men over women is direct discrimination.

Question 20

What is the same employer principle?

Answer 20

When arguing equal pay cases, the pay must be comparable to a position within the same employer. Auth: Lawrence

Question 21

C-320/00 Lawrence

Answer 21

Facts: Women working for the council to clean schools had previously won an equal pay dispute comparing their work to men in jobs of equal value, and as a result their wages were raised. Subsequently, these jobs were outsourced, and the outsourcer paid less than the council had, and employed some of the same women. Those women tried to bring an action for equal pay, but the CJEU ruled that while the articles themselves don’t require the two comparison jobs to be from the same employer, in order to have someone accountable for the discrepancy, there must be a single source. In this case, no single source, so doesn’t fall under Art 157.

Significance: Same employer principle

Question 22

C-127/92 Enderby

Answer 22

Facts: Female speech therapists making an equal pay claim compared to male clinical psychologists. Both jobs required degrees and similar duties.

Significance: Art 157 does not require two employees to have the same job, but rather perform a job of equal value. Established by comparing pre-requisites and duties. Real need of the business (if appropriate and necessary) is an objective justification for indirect discrimination. Also established that where the statistics are used to evidence indirect discrimination, the burden of proof shifts from claimant to the employer to explain the discrepancy is based on objectively justified factors rather than sex discrimination.

Question 23

Jenkins

Answer 23

Facts: Part-time worker employed by a department store brought a claim against an employer, since she was on a lower hourly rate than her full-time male counterpart.

Significance: Lower hourly rate of pay for part-time workers than full-time workers was considered indirect discrimination since it disproportionately affected women. Could be justified.

Question 24

Steinicke

Answer 24

Facts: National law said older public servants could only work part-time if they had worked full-time for at least 3/5 of the preceding years. Was ruled indirectly discriminatory since more women than men were part-time workers, but could be justified. On age, it was ruled unsuitable at unblocking the employment market, as it discouraged people taking part-time roles since they would not benefit from the scheme. Also ruled that while budgetary considerations may be factors in these provisions, they are not in themselves a valid justification.

Significance: Cost in itself is not a valid justification for indirect discrimination.

Question 25

How to justify direct and indirect discrimination?

Answer 25

Direct: Cannot be justified
Indirect: Real need of the business, appropriate and necessary. Must be demonstrably proportionate.
Cost in itself not a valid justification

Question 26

P v S

Answer 26

Facts: Employee dismissed for undergoing gender-reassignment surgery. Was ruled to be direct discrimination on basis of sex under equal treatment directive.

Significance: Gender identity cases fall under equal treatment and Directive 2006

Question 27

Grant v South-West Trains

Answer 27

Facts: Train operator granted travel concessions to the partners of their employees, but would not do this for same-sex couples. Was ruled not gender discrimination, since it equally discriminated against gay men and gay women.

Significance: Sexual orientation does not fall under equal treatment/Directive 2006

Question 28

Webb v EMO Air Cargo

Answer 28

Facts: Employee went on maternity leave. New hire filling in got pregnant and was fired. Was ruled direct discrimination. Supported by fact that replacement was hired on a permanent basis.

Significance: Firing pregnant women is direct discrimination and cannot be justified, even if it’s replacing someone on maternity leave.

Question 29

Tele Danmark

Answer 29

Facts: Employee hired on temporary maternity cover. She was pregnant at interview and lied about it. Court ruled she had the right to lie since it’s an illegitimate question. Court ruled pregnancy is an absolute protection, so employee could not be dismissed even from a short term contract.

Significance: Pregnancy is an absolute protection against dismissal, including fixed term contracts.

Question 30

Hertz v Aldi

Answer 30

Facts: Part-time cashier had a lot of pregnancy complications and as such spent a lot of time on sick leave. After coming back to work, she was off sick again for 100 working days related to pregnancy complications. CJEU reference concluded that the sick leave after returning to work should be treated as any other type of sick leave, but that any sickness during maternity leave couldn’t contribute to the “clock”.

Significance: Illness during pregnancy does not allow dismissal. Returning to work post-maternity leave with illness related to pregnancy: dismissal only permissable if a man would be fired under same circumstances. Clock on sick leave restarts at end of maternity leave.

Question 31

Jimenez Melgar

Answer 31

Facts: Spanish worker employed by the municipality on several subsequent contracts had her contract terminated after they found out she was pregnant. They did not have to specify reasons for non-renewal, so could have been pregnancy related.

Significance: Non-renewal of a FTC is not discrimination unless motivated by the fact that the worker is pregnant. Employers under EU law don’t have to give reasons for non-renewal of contracts.

Question 32

Gillespie

Answer 32

Facts: Workers employed by Northern Ireland Health Services lost out on a retroactive pay rise following union negotiations because they were on maternity leave.

Significance: Pregnancy Directive and Equal Pay provisions don’t require employers to pay full salary during maternity leave, however if that salary would have been subject to any pay rises but for the pregnancy, then the pregnant worker should still benefit from the pay rises.

Question 33

Mckenna

Answer 33

Facts: Pregnant worker on sick leave most of pregnancy due to complications. Staff sick pay policy did not discern between pregnancy-related illness and other illness. Was down to half pay when she went on maternity leave, then received normal maternity pay, then after she was still on sick leave so back on half pay. Was ruled not discriminatory, provided the amount of pay is not so low as to undermine the objective of protecting pregnant workers.

Significance: Treating pregnancy-related illness the same as general illness is not inherently discriminatory.

Question 34

Gerster

Answer 34

Facts: Employees of Ministry of Agriculture in Bavaria could be promoted after two years of service, or four years if part time. Was held to be indirect discrimination as more part time workers were women than men. To be justified and proportionate, the part-time worker must be given opportunity to demonstrate same skills as full-time equivalent.

Significance: Example of indirect discrimination and test in fact.

Question 35

Johnston

Answer 35

Facts: Police officer in Northern Ireland. Her contract was not renewed during the Troubles, as officers were required to carry firearms and females weren’t permitted to carry firearms because of the risk. Police argued that women are more likely to be targets of assassination, so disproportionate risk to women. Court said it was allowable for certain policing activities only (proportionality) - not all officers were beat cops. The CJEU did not require any evidence to support the police’s assertion that there was a disproportionate risk to women. A lot of the decision-making was left to the national court.

Significance: Proportionality and justifications - responsiblities of role

Question 36

Sirdar

Answer 36

Facts: Front line combat jobs - royal marines in UK. She applied to a job as a cook, got the job, was retracted when they found out she was a woman. MoD argued that it was frontline combat (even as a cook) - court accepted it as an exception since the Marines are an exceptional and small force.

Significance: Example of Art 14(2) exception

Question 37

Kreil

Answer 37

Facts: German constitution prevented women from serving in the armed forces. There are two branches: citizens in arms (conscripted men) and professional army. Kreil wanted to work as a weapons engineer in the professional army, won at employment tribunal. Was ruled direct sex discrimination, didn’t fall under nature and context of the job since not frontline combat. Not proportionate, since the ban applied too widely across various military positions.

Significance: Art 14(2) exception denied

Question 38

Art 14(2) of 2006 Directive

Answer 38

Exceptions permitted based on nature or context of duties carried out

Question 39

What are the exceptions/justifications for sex discrimination under the 2006 Directive?

Answer 39

Nature of the particular occupational activities, OR
Context of the occupational activities
BUT
Must be a genuine occupational requirement
Objective must be legitimate and application must be proportionate

Question 40

Where are the exceptions/justifications for sex discrimination set out?

Answer 40

Art 14(2) of 2006 Equal Treatment Directive

Question 41

Hofmann

Answer 41

Facts: Argued that extended maternity leave (beyond what’s necessary to recuperate from pregnancy/childbirth) discriminatorily favoured women unless the same leave was given as paternity. ECJ rejected this, as extended leave was to protect women in connection with effects of pregnancy, not “alter the division of responsibility between parents”. Craig and de Burca note that this could support the traditional divisions of responsibility, in that women are primary caregivers.

Significance: Mothers vs fathers

Question 42

Commission v Italy

Answer 42

Facts: Commission enforcement action against Italy for failing to properly implement the Equal Treatment Directive into national law. Specifically, a mother adopting a child was granted leave for a certain period, but the father was not. Italian government justified it as providing the same rights as to a family of a newbord child, and so the complaint was dismissed.

Significance: Maternity leave and adoption

Question 43

Article 23 Charter of Fundamental Human Rights

Answer 43

Positive discrimination - specific advantages in favour of an under-represented sex

Question 44

Article 157(4) TFEU

Answer 44

Positive discrimination - MS can adopt measures providing specific advantages for underrepresented sexes

Question 45

Directive 2006/54, Article 3

Answer 45

Positive discrimination - MS may adopt measures that ensure full equality in practice btw men and women

Question 46

Kalanke

Answer 46

Facts: German law said if man and woman who are equally qualified go for a promotion, then the woman should get the job if women underrepresented. Court struck down since affecting the actual result rather than just creating a level playing field.

Significance: Positive discrimination should look to level the playing field rather than create automatic results

Question 47

Marschall

Answer 47

Facts: National law saying if two equally qualified candidates, woman would get the job but with additional provision that the man would get the job if he has particular qualities of interest (i.e. other disadvantages in life).

Significance: Rebuttal of positive discrimination. Requires demonstration of discrimination suffered by the actual candidates personally, not generalizations.

Question 48

Abrahamsson

Answer 48

Facts: Sweden trying to promote women in Higher Education. A suitably qualified female candidate will be preferred even if better qualified man. Court struck down, similar to Kalanke

Significance: Positive discrimination can’t automatically affect the outcome. Any policy favouring an under-represented candidate must be dsigned to reduce de facto inequalities/career disadvantages and be based on transparent and objective job criteria.

Question 49

Lommers

Answer 49

Facts: Allowed women to use subsidised nursery places within ministry, men could not. Court upheld it because woman may have specific disadvantages, but in exceptional cases (such as single fathers) men must be permitted access to nursery.

Significance: Not officially overturned but now a doubtful authority because of Griesmar

Question 50

Abdoulaye

Answer 50

Facts: Renault paid female workers a lump sum on maternity in addition to maternity pay, to compensate for the occupational disadvantage of maternity leave (e.g. not eligible for promotion, misses out on training, etc).

Significance: If the positive discrimination granted is specifically to offset the occupational disadvantage of maternity leave, then this is permissable.

Question 51

Griesmar

Answer 51

Facts: Male civil servant was a father, was granted a pension. Female civil servants were entitled to service credits per child in their pension, men were not. CJEU found it to infringe equal pay if excluding male civil servants who could prove they were the primary carer for their children.

Significance: Need to distinguish mothers from parents. Should protections given to women on the basis of presumed childcare responsibilities really be awarded to parents (regardless of sex) and not to childless women?

Question 52

Roca Alvarez

Answer 52

Facts: Spanish law permitted women leave during first nine months following childbirth. Men can also (provided their partner is also employed) take these breaks. Man with self-employed partner didn’t get these breaks, but were the sexes reversed he would have. Court looked at the purpose of the Spanish law - it was not related to breastfeeding or pregnancy-related conditions, but rather about parenting. Ruled discriminatory. Court noted that men without working wives being exempt perpetuates traditional gender roles.

Significance: When comparing types of parental leave, need to look at whether it’s related to the biological facts of childbirth or about child-rearing responsibilities.

Question 53

Does Art 19 TFEU have direct effect?

Answer 53

No
Authority: Article grants the power to the Union to legislate against discrimination. It does not prohibit discrimination in and of itself.

Question 54

What is the authority for the age discrimination exception?

Answer 54

Art 6 of the Framework Employment Directive 2000/78

Question 55

Describe the age discrimination exception

Answer 55

Differences of treatment based on age will not be discrimination if:
1) objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and
2) if the means of achieving that aim are appropriate and necessary.

Question 56

Palacios de la Villa

Answer 56

Facts: Employee challenged the automatic termination of his contract upon reaching compulsory retirement age. Was direct discrimination, and national law did not refer to an objective. CJEU ruled it could be permitted if objectively and reasonably justified by a legitimate aim, and the measures in place are appropriate/necessary for that aim.

Significance: Automatic retirement ages can compy with the Framework Employment Directive if justified and proportionate.

Question 57

Age Concern England

Answer 57

Facts: British charity challenged provision of UK law permitting an employer to dismiss workers when they reached retirement age. ECJ ruled that the justification could be inferred even if not explicit in the national law, but that such justification must be of a public nature (social policy, employment policy, etc) not up to an individual employers trying to maintain competitiveness/keep costs down. “Mere generalizations” would undermine the Directive’s effectiveness.

Significance: The burden of proof for justification for direct discrimination is higher than indirect discrimination. Justification must be in social policy, not left to individual employers.

Question 58

Rosenbladt

Answer 58

Facts: Claimant was a cleaner in Germany who was dismissed when she reached retirement age. Court ruled that it was discriminatory, but could be justified if proportionate. While the court acknowledged that while the objectives could be achieved through other means, since the national law did not automatically exclude pensioners from the labour market, so the claimant could go find another job, it succeeded on proportionality.

Significance: Assessment of the justification and proportionality need to consider a holistic assessment of the protections available to pensioners, labour market conditions, and features of the job in question.

Question 59

Age Discrimination Structure

Answer 59

1) Identify the relevant legal basis. If sex discrimination, is it equal pay or equal treatment?
2) Is it direct discrimination, indirect discrimination, or positive discrimination?
3) Does an exemption apply? E.g. Nature/context of job, or age discrimination.
4) Can it be justified? Is it suitable and proportionate?
5) Remedies - indirect effect and state liability

Question 60

Facts: Belgian case banning wearing of religious symbols in the workplace, adopted after an employee began wearing a Muslim headscarf.Court ruled the text of the policy was not direct discrimination, but if only applied to some religions in practice, then it is indirect discrimination. Court ruled that direct discrimination cannot be justified; indirect discrimination can be justified if proportionate and in pursuit of a legitimate aim.

Significance: Direct vs indirect discrimination

Answer 60

C-157/15 Achbita

Question 61

Facts: Defrenne worked for Belgian airline Sabena, and was paid less than her male colleagues. Article 157 included a provision for equal pay. CJEU confirmed treaty articles had direct horizontal effect.

Significance: Example of direct horizontal effect of treaty articles. Confirms scope of direct effect of Art 157.

Answer 61

Defrenne v Sabena No 2

Question 62

Facts: British rail company provided retired male employees with special travel perks for themselves, partners, and dependents - this was not part of employment contracts. Retired female workers were not provided with the same benefit. Confirmed to be discriminatory, and that travel benefits were considered pay for the purposes of equal pay, since it was in contemplation of employment.

Significance: Wide interpretation of “pay” for equal pay - anything provided in exchange for work.

Answer 62

Case 12/81 Garland v British Rail Engineering

Question 63

Facts: German legislation permitted employers to not pay sick pay to workers whose normal hours were less than 10 hours/week or 45 hours/month. Was found to disproportionately affect women over men, and thus indirectly discriminatory, and would require justification/proportionality.

Significance: Sick pay qualifies as pay under Art 157. Example of discrimination in fact but not in law.

Answer 63

171/88 Rinner Kuhn

Question 64

Facts: UK case. Legislation said that protection against unfair dismissal only applied to employees who had been continuously employed for 2+ years. Argued that this disproportionately affected women. Preliminary ruling said that the national court would need to confirm if this was statistically true, and if so, the legislation was indirectly discriminatory, and the MS would need to justify it on legitimate grounds unrelated to discrimination, and must be proportionate.

Significance: Pay for unfair dismissal qualifies as pay under Art 157, but the right to be re-instated falls under the equal treatment directive. For indirect discrimination: must establish numerical discrepancy between genders in the neutral criteria, then the burden of proof moves to the MS/employer to prove an objective justification. There’s no exact threshold for “disproportionate” - just “considerably” different effect on the genders.

Answer 64

C-167 Seymour Smith

Question 65

Facts: Employer excluded part-time workers from their pension scheme, which disproportionately affected women. Was indirect discrimination but could be justified, such as if the company wanted to employ as few part-time workers as possible due to a real business need.

Significance: Occupational pensions qualify as pay. Example of objective justification for indirect discrimination.

Answer 65

C-170/84 Bilka-Kaufhaus

Question 66

Facts: British man made redundant did not have access to his employer pension due to his age. Pension age was older for men than for women. Questions: 1) is pension pay under equal pay or equal treatment? 2) Is equal pay infringed where a woman would receive immediate access to her pension but a man in the same circumstances would not? CJEU ruled that pension is pay, and this policy infringed equal pay. Equality in pay must be applied to each aspect of pay individually, not a holistic assessment of sum of all benefits (as that’s too onerous for courts).

Significance: Pension is pay, a higher pension age for men over women is direct discrimination.

Answer 66

C-262/88 Barber

Question 67

Facts: Women working for the council to clean schools had previously won an equal pay dispute comparing their work to men in jobs of equal value, and as a result their wages were raised. Subsequently, these jobs were outsourced, and the outsourcer paid less than the council had, and employed some of the same women. Those women tried to bring an action for equal pay, but the CJEU ruled that while the articles themselves don’t require the two comparison jobs to be from the same employer, in order to have someone accountable for the discrepancy, there must be a single source. In this case, no single source, so doesn’t fall under Art 157.

Significance: Same employer principle

Answer 67

C-320/00 Lawrence

Question 68

Facts: Female speech therapists making an equal pay claim compared to male clinical psychologists. Both jobs required degrees and similar duties.

Significance: Art 157 does not require two employees to have the same job, but rather perform a job of equal value. Established by comparing pre-requisites and duties. Real need of the business (if appropriate and necessary) is an objective justification for indirect discrimination. Also established that where the statistics are used to evidence indirect discrimination, the burden of proof shifts from claimant to the employer to explain the discrepancy is based on objectively justified factors rather than sex discrimination.

Answer 68

C-127/92 Enderby

Question 69

Facts: Part-time worker employed by a department store brought a claim against an employer, since she was on a lower hourly rate than her full-time male counterpart.

Significance: Lower hourly rate of pay for part-time workers than full-time workers was considered indirect discrimination since it disproportionately affected women. Could be justified.

Answer 69

Jenkins

Question 70

Facts: National law said older public servants could only work part-time if they had worked full-time for at least 3/5 of the preceding years. Was ruled indirectly discriminatory since more women than men were part-time workers, but could be justified. On age, it was ruled unsuitable at unblocking the employment market, as it discouraged people taking part-time roles since they would not benefit from the scheme. Also ruled that while budgetary considerations may be factors in these provisions, they are not in themselves a valid justification.

Significance: Cost in itself is not a valid justification for indirect discrimination.

Answer 70

Steinicke

Question 71

Facts: Employee dismissed for undergoing gender-reassignment surgery. Was ruled to be direct discrimination on basis of sex under equal treatment directive.

Significance: Gender identity cases fall under equal treatment and Directive 2006

Answer 71

P v S

Question 72

Facts: Train operator granted travel concessions to the partners of their employees, but would not do this for same-sex couples. Was ruled not gender discrimination, since it equally discriminated against gay men and gay women.

Significance: Sexual orientation does not fall under equal treatment/Directive 2006

Answer 72

Grant v South-West Trains

Question 73

Facts: Employee went on maternity leave. New hire filling in got pregnant and was fired. Was ruled direct discrimination. Supported by fact that replacement was hired on a permanent basis.

Significance: Firing pregnant women is direct discrimination and cannot be justified, even if it’s replacing someone on maternity leave.

Answer 73

Webb v EMO Air Cargo

Question 74

Facts: Employee hired on temporary maternity cover. She was pregnant at interview and lied about it. Court ruled she had the right to lie since it’s an illegitimate question. Court ruled pregnancy is an absolute protection, so employee could not be dismissed even from a short term contract.

Significance: Pregnancy is an absolute protection against dismissal, including fixed term contracts.

Answer 74

Tele Danmark

Question 75

Facts: Part-time cashier had a lot of pregnancy complications and as such spent a lot of time on sick leave. After coming back to work, she was off sick again for 100 working days related to pregnancy complications. CJEU reference concluded that the sick leave after returning to work should be treated as any other type of sick leave, but that any sickness during maternity leave couldn’t contribute to the “clock”.

Significance: Illness during pregnancy does not allow dismissal. Returning to work post-maternity leave with illness related to pregnancy: dismissal only permissable if a man would be fired under same circumstances. Clock on sick leave restarts at end of maternity leave.

Answer 75

Hertz v Aldi

Question 76

Facts: Spanish worker employed by the municipality on several subsequent contracts had her contract terminated after they found out she was pregnant. They did not have to specify reasons for non-renewal, so could have been pregnancy related.

Significance: Non-renewal of a FTC is not discrimination unless motivated by the fact that the worker is pregnant. Employers under EU law don’t have to give reasons for non-renewal of contracts.

Answer 76

Jimenez Melgar

Question 77

Facts: Workers employed by Northern Ireland Health Services lost out on a retroactive pay rise following union negotiations because they were on maternity leave.

Significance: Pregnancy Directive and Equal Pay provisions don’t require employers to pay full salary during maternity leave, however if that salary would have been subject to any pay rises but for the pregnancy, then the pregnant worker should still benefit from the pay rises.

Answer 77

Gillespie

Question 78

Facts: Pregnant worker on sick leave most of pregnancy due to complications. Staff sick pay policy did not discern between pregnancy-related illness and other illness. Was down to half pay when she went on maternity leave, then received normal maternity pay, then after she was still on sick leave so back on half pay. Was ruled not discriminatory, provided the amount of pay is not so low as to undermine the objective of protecting pregnant workers.

Significance: Treating pregnancy-related illness the same as general illness is not inherently discriminatory.

Answer 78

Mckenna

Question 79

Facts: Employees of Ministry of Agriculture in Bavaria could be promoted after two years of service, or four years if part time. Was held to be indirect discrimination as more part time workers were women than men. To be justified and proportionate, the part-time worker must be given opportunity to demonstrate same skills as full-time equivalent.

Significance: Example of indirect discrimination and test in fact.

Answer 79

Gerster

Question 80

Facts: Police officer in Northern Ireland. Her contract was not renewed during the Troubles, as officers were required to carry firearms and females weren’t permitted to carry firearms because of the risk. Police argued that women are more likely to be targets of assassination, so disproportionate risk to women. Court said it was allowable for certain policing activities only (proportionality) - not all officers were beat cops. The CJEU did not require any evidence to support the police’s assertion that there was a disproportionate risk to women. A lot of the decision-making was left to the national court.

Significance: Proportionality and justifications - responsiblities of role

Answer 80

Johnston

Question 81

Facts: Front line combat jobs - royal marines in UK. She applied to a job as a cook, got the job, was retracted when they found out she was a woman. MoD argued that it was frontline combat (even as a cook) - court accepted it as an exception since the Marines are an exceptional and small force.

Significance: Example of Art 14(2) exception

Answer 81

Sirdar

Question 82

Facts: German constitution prevented women from serving in the armed forces. There are two branches: citizens in arms (conscripted men) and professional army. Kreil wanted to work as a weapons engineer in the professional army, won at employment tribunal. Was ruled direct sex discrimination, didn’t fall under nature and context of the job since not frontline combat. Not proportionate, since the ban applied too widely across various military positions.

Significance: Art 14(2) exception denied

Answer 82

Kreil

Question 83

Facts: German law said if man and woman who are equally qualified go for a promotion, then the woman should get the job if women underrepresented. Court struck down since affecting the actual result rather than just creating a level playing field.

Significance: Positive discrimination should look to level the playing field rather than create automatic results

Answer 83

Kalanke

Question 84

Facts: National law saying if two equally qualified candidates, woman would get the job but with additional provision that the man would get the job if he has particular qualities of interest (i.e. other disadvantages in life).

Significance: Rebuttal of positive discrimination. Requires demonstration of discrimination suffered by the actual candidates personally, not generalizations.

Answer 84

Marschall

Question 85

Facts: Sweden trying to promote women in Higher Education. A suitably qualified female candidate will be preferred even if better qualified man. Court struck down, similar to Kalanke

Significance: Positive discrimination can’t automatically affect the outcome. Any policy favouring an under-represented candidate must be dsigned to reduce de facto inequalities/career disadvantages and be based on transparent and objective job criteria.

Answer 85

Abrahamsson

Question 86

Facts: Allowed women to use subsidised nursery places within ministry, men could not. Court upheld it because woman may have specific disadvantages, but in exceptional cases (such as single fathers) men must be permitted access to nursery.

Significance: Not officially overturned but now a doubtful authority because of Griesmar

Answer 86

Lommers

Question 87

Facts: Male civil servant was a father, was granted a pension. Female civil servants were entitled to service credits per child in their pension, men were not. CJEU found it to infringe equal pay if excluding male civil servants who could prove they were the primary carer for their children.

Significance: Need to distinguish mothers from parents. Should protections given to women on the basis of presumed childcare responsibilities really be awarded to parents (regardless of sex) and not to childless women?

Answer 87

Griesmar

Question 88

Facts: Spanish law permitted women leave during first nine months following childbirth. Men can also (provided their partner is also employed) take these breaks. Man with self-employed partner didn’t get these breaks, but were the sexes reversed he would have. Court looked at the purpose of the Spanish law - it was not related to breastfeeding or pregnancy-related conditions, but rather about parenting. Ruled discriminatory. Court noted that men without working wives being exempt perpetuates traditional gender roles.

Significance: When comparing types of parental leave, need to look at whether it’s related to the biological facts of childbirth or about child-rearing responsibilities.

Answer 88

Roca Alvarez

Question 89

Facts: Employee challenged the automatic termination of his contract upon reaching compulsory retirement age. Was direct discrimination, and national law did not refer to an objective. CJEU ruled it could be permitted if objectively and reasonably justified by a legitimate aim, and the measures in place are appropriate/necessary for that aim.

Significance: Automatic retirement ages can compy with the Framework Employment Directive if justified and proportionate.

Answer 89

Palacios de la Villa

Question 90

Facts: British charity challenged provision of UK law permitting an employer to dismiss workers when they reached retirement age. ECJ ruled that the justification could be inferred even if not explicit in the national law, but that such justification must be of a public nature (social policy, employment policy, etc) not up to an individual employers trying to maintain competitiveness/keep costs down. “Mere generalizations” would undermine the Directive’s effectiveness.

Significance: The burden of proof for justification for direct discrimination is higher than indirect discrimination. Justification must be in social policy, not left to individual employers.

Answer 90

Age Concern England

Question 91

Facts: Claimant was a cleaner in Germany who was dismissed when she reached retirement age. Court ruled that it was discriminatory, but could be justified if proportionate. While the court acknowledged that while the objectives could be achieved through other means, since the national law did not automatically exclude pensioners from the labour market, so the claimant could go find another job, it succeeded on proportionality.

Significance: Assessment of the justification and proportionality need to consider a holistic assessment of the protections available to pensioners, labour market conditions, and features of the job in question.

Answer 91

Rosenbladt