WS 3: Social Policy - Sex Discrimination

Question 1

Structure for answering a social policy problem question

Answer 1

1) General aim of anti-dsicriminatory legislation
2) Does the issue concern pay or treatment?
3) Is it direct or indirect discrimination?
4) Can the discrimination be justified?
5) Conclude: Often resolve around the extent to which the Bilka-Kaufhaus test is satisfied

Question 2

What is the general aim of anti-discriminatory legislation?

Answer 2

To promote fairness & equality, & economic growth within the community (Defrenne v Sabena)

Question 3

Article 157 TFEU:

Answer 3

Men and women should receive equal pay for equal work or work of equal value (Art 157 TFEU has direct effect - Defrenne v SABENA)

Question 4

Article 157(2) definition of pay

Answer 4

Pay = salary or any other consideration whether in cash or kind, indirect or direct, in respect of employment from employer

Question 5

Garland v British Rail

Answer 5

travel concessions for family of retired employee count as pay

Question 6

Barber v guardian

Answer 6

Statutory redundancy pay counts as pay

Question 7

Do pension payments count as pay?

Answer 7

Yes - Bilka Kaufhaus, unless statutory social security pensions (Defrenne)

Question 8

Do damages for unfair dismissal count as pay?

Answer 8

yes = ex p Seymour Smith and Perez

Question 9

What legislation do we look to if the issue concerns equal treatment?

Answer 9

Individual must rely on the Recast Directive 2000/54

Question 10

Is the discrimination direct or indirect?

Answer 10

Direct discrimination: Art 2(1)(a) Recast directive:
Where one person is treated less favourably on the grounds of sex than another/is/was/would have been treated in a comparable situation.

Indirect discrimination: Art 2(1)(b): Recast Directive 2000/54
A neutral provision, criterion or practice which could put persons of one sex at a particular disadvantage compared with persons of the opposite sex.

Question 11

Examples of direct discrimination

Answer 11

Woman sacked because she was pregnant (Webb v EMO); woman not hired because she was pregnant (Dekker); male cabin crew paid more than female cabin crew (Defrenne)

Question 12

Use of Pregnancy Directive 92/85

Answer 12

Can usually only be used re dismissal not hiring, but courts upheld it for job apps (see also Art 2(2)(c) Recast Directive)

Question 13

Kingsgate v Jenkins

Answer 13

Art 2(1)(b) definition of indirect discrimination is appropriate for use in Art 157 TFEU claims

Question 14

Direct discrimination. Can it be justified?

Answer 14

No justification!!!

But Defences are available where equal treatment is concerned.

Occupational requirement (Art 14(2)) 2000/54
Positive Action (Art 157(4) and Art 3 2000/54)

Question 15

Occupational requirement Art 14(2) 2000/54

Answer 15

Where a particular job is unsuitable for a particular sex, employer must show that:

. Reserving the job for one sex was a genuine and determining occupational requirement & was proportionate (Commission v UK - ECJ ruled that midwifery could be restricted to women)

Question 16

Proportionate three stages?

Answer 16

1) Appropriate for objective
2) Necessary
3) Must not go beyond what is required (Skimmed Milk Powder)

Question 17

Johnson v Chief Constable of RUC

Answer 17

Derogations from equality must be strictly interpreted it is up to the national court to evaluate whether the reasoning is well-founded.

Question 18

Positive Action (Art 157(4) & Art 3 2000/54)

Answer 18

Principle of equal treatment does not prohibit MS from adopting measures to make it easier for under represented sex to pursue vocation.

Art 157(4) TFEU: is a means of derogation; not a positive right to discriminate. E.g. cannot favour less qualified women (the employer must still assess the merits (objective) of each candidate, irrespective of sex) [Abrahamson v Anderson]

Question 19

Marshall v Land Nordrhein - Westfallen

Answer 19

ECJ upheld the following German positive action policy:

i Where man and woman equally qualified for the job - presumption that the under-rep sex must be favoured

ii. So long as the man does not demonstrate overriding characteristics (rebuttal)

Question 20

Art 3 Recast Directive

Answer 20

Maintain and adopt measures within the meaning of Art 157(4) TFEU with a view to ensuring full equality in practice between men and women.

Question 21

Can indirect discrimination be justified?

Answer 21

Yes - OBJECTIVE JUSITIFICATION OF IND DISC: Art 19 2000/54: Can C establish that more people of the same sex are adversely affected? (Burden of proof on C here)?

Question 22

Indirect discrimination: Measure taken by an employer against an employee

Answer 22

Bilka-Kaufhaus [1986]: NAN

1) Correspondence to a legitimate aim (real need on part of employer)
2) Is an appropriate means of achieving objective
3) Necessary

Question 23

Indirect discrimination: State measure

Answer 23

Ex p Seymour: State must show that measure:

. Reflects legitimate aim
. Aim is unrelated to sex discrimination
. Is suitable for achieving the aim