#5759 - Sex Discrimination - GDL EU Law

Defrenne v SABENA (No 2) – objective of SD law – ‘part of the social objectives of the Community’ – not just economic

• A157 TFEU: principle of equal pay for equal work – now extended to equal pay for equal value – A157 now incorporates broader principle of equal treatment - not just equal pay – access/conditions

• Two directives - 75/117 (Equal pay for equal work) and the new 2006/54 (Equal treatment)

• A157(4) : positive discrimination permitted

The meaning of “discrimination”

• When principle of ‘equal pay for male and female workers for equal work or work of equal value’

• Directive 2006/54: same principle recognised and defines ‘direct’ / ‘indirect’ discrimination A2(a)/(b)

Indirect: Where a provision puts one sex at a disadvantages without objective justification: Rinner-Kuhn v FWW: German law excluded from sick pay workers doing no more than 10 hours were week – part-time workers likely to be more female than male – Jenkins v Kingsgate (Clothing Productions) – paying part-time workers less than full doesn’t itself constitute discrimination – but only if different rates attributable to objectively justified factos

• Discrimination if 2 categories of workers are paid differently for work of equal value – Enderby v Frenchay

Objective Justification

• Clarified in Bilka-Kaufaus: proportionality test – objectively justified if (a) correspond to a real need of the business (b) appropriate with a view to achieving objectives pursued (c) necessary to achieve objectives

“Sex” Discrimination

• P v S and Cornwall County Council: dismissal of a transsexual for reasons of gender reassignment = SD

• However – Grant v SW Trains: Stable relationship required for employee travel benefits: discrimination based on sexual orientation did not constitute SD - Clarification now in Directive 2000/78 adopted under A19 TFEU – prohibition on discrimination based on sexual orientation

A157 TFEU: Equal Pay

• Defrenne (No 2): A157 directly effective – but prospective only: only those who had already lodged claims

Definition of “pay”: broadly defined: e.g. Garland v British Rail: special travel facilities to male employees = pay

Pensions: do they constitute pay?

• Directive 79/7 (Social Security Directive) – expressly excludes state pensions from definition of pay in A157

• However – pension schemes provided by employers has been included

• Bilka: occupational pension scheme which supplemented state – contractual nature of scheme

• Barber v Guardian Royal Exchange Assurance Group: occupational scheme partly replaced state – contracted-out scheme – contracted-out not statutory so fell within concept of “pay” - showed that different redundancy entitlements for men/women based on pension ages in national statutory schemes still breach A157: Barber shows that discrimination sometimes in favour or women – Barber didn’t have retroactive effect

Wide adoption of “pay”: Tenoever – pension benefits payable to employee’s widow was ‘pay’ within A157 and Worringham – contributions paid by an employer directly into occupational pension scheme were ‘pay’

Directive 75/11: Work of Equal Value

1. Where the jobs are the same

• Angestelten Betriebsrat der Wiener Genietskranken Kasse: professional training may be valid criterion

2. where the jobs are of ‘equal value’ to one another

• ‘Job Classification System’ – evaluation according to specific criteria – now restated in A4 of D2006/54

• Classification system considered in Rummier v Dato-Druck GmbH – relied on physical effort –this itself was not a breach as long as ‘objectively measurable’ amount of physical effort was ‘necessary in carrying out the work’ as long as classification as a whole precluded SD

Directive 2006/54: Equal treatment in employment

• Based on general powers in A353 TFEU

• A 1(a-c) of the Equal treatment Directive 2006/54: principle of equal treatment in i) access to employment ii) working conditions iii) occupational social security systems

• A2(2) adds that it includes harassment, maternity leave etc.

• A3 – positive action

• Directive also provides protection vs. victimization by employers where employee complains of SD (Coote v Granada Hospitality)

Derogations from the equal treatment principle

1. Article 2(6) Directive 76/207: where the sex of the worker is the determining factor

• Commission v UK (Male Midwives) – restrictions justified because of the ‘personal sensitivities’ involved -although Sex Discrimination Act has since been amended to allow male midwives

• Johnston v Chief Constable of the Royal Ulster Constabulary: carrying of firearms – sex could be determining factor but 2 limitations - national court had to decide on basis of proportionality principle and even if justified it must be reviewed periodically in the light of social developments

• Sirdar v The Army Board: exclusion of women from royal marines – justified because of particular activities undertaken – Corps was an exceptional and small force intended to be first line of attack – but contrast with Kreil : German blanket legislation prohibiting women from all military posts couldn’t be justified under A2(6)

2. Article 2(7) Directive 76/207: protection of women

• MS can make special provisions for pregnant women/women after childbirth without breaching EU law

• German law granting leave to mothers justified - Hofmann v Barmer - Directive not designed to settle questions about organisation of the family – but limitations in Commission v France – Since Hofmann - Parental leave Directive 96/34 – provides 3 months parental leave for both men and women

• Abdoulaye: lump sum payments to female employees in maternity leave not SD

• Scope for protection beyond maternity/pregnancy unclear – Ministere Public v Stoeckel – prohibition on night work for men but not women (‘protective measure’) not justified

3. Article 2(8) Directive 76/207: positive discrimination -A3 Directive 2006/54 + overlap with A157

• But not too rigid: Abrahammson and Anderson – appointing woman ahead of better-qualified man

Enforcement of Directive 2006/54

• Direct/Indirect enforcement cases – Marshall, Von Colson

• A17: requires MS establish correct judicial procedures for enforcement of obligations under Directive

• A18: compensation must be proportionate and not subject to an upper limit

Equal treatment and pensionable ages: A13 Directive 2006/54

• Article 7(1)(a) of Directive 79/7: permits MS to determine pensionable ages – state pensions excluded (Defrenne (No1)

• Burton: voluntary redundancy scheme toed to state pension ages – CJ held the scheme was not in breach – BUT –more recent jurisprudence – exclusion confined to state schemes only – Roberts v Tate & Lyle

• Marshall – compulsory retirement policy – concerned dismissal within context of what used to be A3 of Directive 76/207: held that A7(1)(a) exception didn’t apply here - only for purposes of old-age pensions

• Barber: redundancy payments and pension paid under contracted-out occupational pension scheme = pay

Equal Treatment and Financial Services

• No discrimination allowed: Test-Achtats case – Belgian consumer association vs Gender directive 2004/113 which allowed insurance companies to use gender factor when calculating premiums: CJ found conflict with general principle of non-discrimination: from 21 December 2012 – judgement will apply to all new contracts

Pregnancy: A2(2)(c) of Directive 2006/54 + definition in...