Chapter 14 Suggested approaches to end-of-chapter questions

Discrimination law
1. Why was a sex equality provision (Article 119 EEC, now 157 TFEU) included in the Treaties?

It is now generally accepted that the immediate reason for including Article 119 in the EEC Treaty was not for reasons of social justice, but out of economic considerations, i.e. the creation of level playing fields for industry in terms of the application of national social laws. The Article was alleged to have been included at the request of the French, whose law provided for equality of pay between male and female workers. It was feared that French industry would be at a disadvantage if equal pay were not enforced in the other member states.

2. How, if at all, is pay defined?

Pay as interpreted by the Court of Justice also includes rules by which seniority/loyalty payments are achieved in favour of full-time employees in Case C-184/89 Nimz v Hamburg; sick pay, even though part of a statutory scheme in Case 171/88 Ingrid Rinner-Kuhn v FWW Spezial-Gebaudereiningung; a severance grant in C-33/89 Kowalska v Hamburg and compensation for lost wages for attendance on training course for Works council members in Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin v Monika Botel. Unfair dismissal compensation and redundancy pay have also been confirmed to come within Article 141 EC (now 157 TFEU) in C-167/97 Seymour-Smith & Perez. Hence then pay is given a very wide meaning and any payments and benefits which arise from the employment relationship may be held to be pay under Article 157 TFEU including according to the Barber case, pensions where part of a contractual relationship.

3. Why were pensions considered as pay when they were meant to be excluded under Directive 79/7?

The Court of Justice concluded that the statutory redundancy pay and the benefits from his contracted out occupational pension (OP) scheme, i.e. the pension itself were 'pay' within Article 119 EEC (now 157 TFEU). The deciding factor is whether the rules and thus payment of the specific scheme are a part of the employment contract or even by the voluntary inclusion of the employer.

4. With whom can an applicant be compared in an equal pay claim?

The comparator can be someone who is employed at the same time or even a prior employee. See Macarthy's v Wendy Smith.

5. What is ‘indirect discrimination’?

This is where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

6. When can a difference in pay or treatment be justified?

If based on objective factors not connected with the sex of the person concerned. For example, the justification given by an employer may be that the company needs to encourage the recruitment of full-time employees. In which case, the national court could require evidence which demonstrates the relative number of full-time and part-time vacancies and applications for those posts to see whether the facts bear out the claim made by the company.

7. When is it lawful to dismiss a woman who is pregnant or has given birth?

Not during the period of special protection provided by EU law under Directives 76/207 (replaced now by Directive 2006/54) and 92/85 and only when that period has expired. Then the question of whether such dismissal is unlawful reverts to comparing it with the dismissal of a man for illness. A woman dismissed for taking too much time off due to illness arising from pregnancy should therefore be compared with a man suffering from any illness. So although pregnancy played its role as the source of the illness, outside of the protected period, it is the normal comparison which determines the legal position

8. What does positive discrimination mean in the EU context?

It has so far a limited meaning in EU law in that any measures which are introduced by the member states or employers to counteract previous discrimination against women or even less favourable prior treatment, must nevertheless be objective in application. EU law does not support appointments based on automatic preference for the under-represented sex irrespective of whether the qualifications are better or worse and where no objective assessment of each candidate has taken place.

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