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Equal Treatment Notes

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Equal Treatment Article 141EC

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Each Member State shall respect the principle of equal pay for male and female workers for equal work. 'Pay' means the ordinary basic or minimum wage or salary and any other consideration (in pay/kind) received directly or indirectly from an employer. Equal pay means A) the pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement and B) the pay for the same work at time rates shall be the same for the same job. The Council shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment in matters of employment and occupation. In order to ensure the application of these principles the principle of equal treatment shall not prevent any Member State introducing measures which provide specific advantages for the underrepresented sex to pursue a vocational activity or prevent or compensate for disadvantages in professional careers.

Directive 75/117

* Article 2

* There shall be no discrimination on grounds of sex either directly or indirectly by reference in particular to marital or family status.

* Direct discrimination: where one person is treated less favourably on grounds of sex than another is in a comparable situation

* Indirect discrimination: where an apparently neutral provision would put one sex at a disadvantage, unless that provision is objectively justified by a legitimate aim and the means chosen to achieve that aim are appropriate and necessary

* A difference of treatment which is based on a characteristic related to sex shall not constitute discrimination, where, by reason of the particular occupational activities concerned or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

* Member States may adopt measures with a view to ensuring full equality between men and women.

* Article 3

* There shall be no direct or indirect discrimination on grounds of sex in the public or private sector in relation to

* conditions for access to employment

* access to all types and to all levels of vocational guidance and training.

* employment and working conditions including dismissal

* membership of and involvement in an organisation of workers and employers

* To this end, Member States must abolish all laws to the contrary P v S (ECJ 1996) Facts

* The applicant in the main case had undergone gender reassignment surgery and was dismissed from her post as a result. Issue

* Discrimination on grounds of sex - transexualism Judgment

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As one of the fundamental principles of Community Law and one of the fundamental rights in the Community's legal order, the court should not apply the directive in such a restrictive way so that it applies only to discrimination arising out of the fact that a person is of one or other sex. Thus it applies to someone who has undergone gender reassignment surgery. Defrenne v Sabena (ECJ 1976)

Facts

* The reference arose out of a case where a female air hostess complained of the lower rate of remuneration which she received for her work as an air hostess compared with that received by her male colleagues. Issue

* Direct Effect of Article 141EC - Principle of Equal Pay Judgment

* Article 141EC pursues two aims - A) to ensure that those states which have applied the principle of equal pay do not suffer a competitive disadvantage when compared to those who have not and B) to ensure the social progress of the community and the constant improvement of the standards of living of its people.

* Unequal rates of pay which arise for the same in work in the same place and which arise from legislation and collective pay agreements come under the scope of the direct effect of Article 141EC. Jenkins v Kingsgate (ECJ 1981) Facts

* The reference arose out of a case where a female employee doing the same work as a male employee was receiving a lower per hour rate of pay than him.

* The male employee was a full time worker, while the female employee was a part time worker. Issue

* Equal pay - Indirect discrimination Judgment

* The distinction is not directly based on sex and thus it does not offend against the principle of equal pay in so far as the difference in pay between parttime and full
time work is attributable to factors which are objectively justified and in no way related to any discrimination based on sex, e.g. if the employer is for economic reasons trying to encourage people to work the maximum number of hours.

* If it is shown that a considerably smaller percentage of women than men meet the threshold number of hours, then the arrangements are contrary to the principle of equal pay for equal work if , having regard to the difficulties that women have in reaching the threshold, the arrangements cannot be explained by factors other than a discrimination based on sex.

* The national court must decide, having regard to the facts of the case, its history and the employer's intention, this is such a discrimination. BilkaKaufhaus v Weber (ECJ 1986) Facts

* The reference arose out of a challenge by a female parttime worker to a German department store's failure to afford her pension benefits as she had not worked the requisite number of fulltime years.

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