Question

Josephine applies and is short listed along with three roughly equally qualified male applicants for a Chair in Applied Women’s Studies at the University of Wales Institute of Social Human Development (UWISHD). UWISHD has a policy document stating that in the case of equally qualified applicants, where available, a female applicant would be appointed. In order to ensure fairness in the application of the policy, a committee is appointed to review qualifications. For this appointment the Committee is headed by the Deputy Head of the department, Cepia and consisted of five female professors. Despite noting the evidence that one of the male applicants did on paper have slightly better publications and experience, Josephine was recommended and subsequently appointed.

Advise, Tom, the male applicant who feels aggrieved by the decision and challenges the appointment by the University and who claims he has been discriminated against.

A further claim has been made against UWISHD, this time by Dorothy whose contract was not extended, despite being told previously that the department needed all the administrative staff due to the increased administrative work in Universities. Dorothy had been employed previously on four back to back (consecutive) 1 year contracts and had expected a new one to be offered shortly before the 4th one expired. Dorothy was seven and a half months pregnant when the existing contract expired. She had not revealed directly to her employer that she was pregnant but the secretary to the deputy head of department, Cepia, noticed Dorothy’s pregnancy and reported this to Cepia. When the failure to renew the contract was questioned, Cepia advised that it was not department policy to renew short term contracts beyond 4 years but to find a new employee.

Advise Dorothy as to her rights under Community, if any.

Answer guidance

A question on various rights of equality. The first part concentrates on the extent to which “positive discrimination” under Art 141 (4) and Directive 2006/54 (Art 3) is allowed.

Just how far can the member states and employers go in addressing unequal rights?

In view of the cases of Kalanke, Marschall, Badeck, Abrahamsson and Lommers how would the policy would be viewed by the ECJ?

Does the committee as constituted satisfy the requirements of the ECJ in Marschall and Abrahamsson? Arguably not.

The second half is a single issue problem of refusal to appoint / dismissal. The case can be viewed in either light and perhaps this factor is not so crucial to the CoJ – see Melgar. Case rests on Directive 2006/54 (Art 28(1)), Directive 92/85 Art 10 and, inter alia, the cases of Dekkar, Webb, Mahlberg, Melgar, Tele-Danmark and Busch.

The conclusion is that this is probable discrimination and it would be helpful if the status of objective grounds were discussed and the reversal of burden of proof was mentioned.