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Equal Treatment Notes

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Equal Treatment Article 141EC

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

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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