WS 3

Question 1

Jenkins v Kingsgate [1981]

Answer 1

• Is charging part-time workers less than full-time indirect discrimination
• Court asserted that it wasn’t, only when the reasons for paying a lower hourly rate could be objectively justified and were in no way related to any discrimination based on sex (applied the definition)
• Broadened the scope of Article 157, allowing indirect discrimination to apply under it - meaning that indirect discrimination could be applied horizontally

Question 2

Bilka [1986]

Answer 2

Where full-time workers were eligible for pension scheme but part-timers were not.

ECJ outlined a test for national courts to formulate whether a reason was objectively justifiable. Measures must:
- Correspond to a real need on the part of the employer
- Be appropriate to achieving the objective pursued
- Be necessary to that end
——————–
Pensions: was deemed ‘pay’ as the scheme was contractual and not statutory (private pension scheme)

Question 3

Defrenne v Sabena (No 3) [1978]

Answer 3

Having succeeded in equal pay claim, Defrenne then evoked Article 157 TFEU to challenge the discriminatory retirement policy. (Required women to retire at 40, nothing for men)

Held that the Article did not cover discriminatory retirement ages, therefore not directly effective.

Question 4

Garland v BREL [1982]

Answer 4

• Travel concessions offered to retired male employees, but not female.
• Despite this being non-contractual, the ECJ deemed it came under the scope of ‘pay’
• Only given to ex-employees, therefore, linked to the employment relationship

Question 5

Barber [1990]

Answer 5

Can apply to pensions, ‘contracted out’ scheme (employee took on state pension)

Question 6

Seymour-Smith [1999]

Answer 6

• Ruled in line with Barber [1990]
• Money received by an employee will be pay within Article 157 TFEU provided he receives it, albeit indirectly, from the employer, regardless of the current state of their relationship
• ## Applied to compensation for unfair dismissals.Also, good example of application of the Rinner-Kühn test in UK law

Question 7

Defrenne v Belgium (No 1)

Answer 7

• Pension scheme did not constitute ‘pay’ as it was compulsory and statutory

Question 8

Johnston v Chief Constable of the RUC [1986

Answer 8

• Firearms limited to only male members of the army reserves, females removed from reserves
• ECJ found that the reasoning submitted by the RUC for the occupational requirement exception could possibly fit under the derogation
• Deemed it was for the national court to decide whether the reasoning was well founded and proportional

Question 9

Rinner-Kühn [1989]

Answer 9

ECJ reformulated the Bilka test to apply to legislation enacted by the state:

• The law reflects a legitimate aim of its social policy;
• The aim is unrelated to any discrimination based on sex; and
• It is a means that is suitable for attaining that aim.

Question 10

Abrahamsson and Anderson [2000]

Answer 10

For positive discrimination: favouring a lesser qualified woman over a man, or vice-versa is not permitted

Question 11

Kalanke v Freie [1990]

Answer 11

For positive discrimination: Favouring a woman over an equally qualified man, or vice-versa is not permitted.

Question 12

Marschall [1997]

Answer 12

For positive discrimination: Favouring a woman over an equally qualified man, or vice-versa, but with the presence of a saving clause, is permitted

Question 13

Dekker [1990]

Answer 13

To not employ a woman because she is pregnant is direct discrimination

Question 14

Webb v EMO [1994]

Answer 14

To dismiss a woman because she is pregnant is direct discrimination