#5844 - Equal Treatment - Irish European Union Law

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 part-time 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.

Bilka-Kaufhaus v Weber (ECJ 1986)

Facts

• The reference arose out of a challenge by a female part-time worker to a German department store's failure to afford her pension benefits as she had not worked the requisite number of full-time years.

Issue

• Equal treatment – Indirect discrimination

Judgment

• Jenkins is applicable as the pension benefits are analagous to wages – this is a discrimination on grounds of sex unless it can be objectively justified by legitimate factors other than sex.

• The national court must evaluate whether the measures adopted by the department store meet a real need, are appropriate to the objective to be achieved and are necessary to that end – the fact that more women than men are affected by the measures is not enough to show an infringement of Article 141 EC

• The store need not take into account the fact that women often work part-time due to family commitments.

Enderby (ECJ 1993)

Facts

• The reference arose out of case where a female speech therapist challenged a discrepancy in pay between speech therapists (who were predominantly female) and clinical psychologists (who were predominantly male)

Issue

• Equal work – Collective Agreements – Objective justification

Judgment

• Where a practice adversely affects significantly more members of one sex than the other, the onus shifts onto the employer to show that it is based on objective factors unrelated to sex – if the national court finds that significantly more women are speech therapists are women, then there is prima facie case of illegitimate discrimination.

• Directive 75/117 applies the principle of equal pay for equal work to collective agreements – the fact that these agreements were reached out without discrimination is not an objective justification.

• The state of the employment market and the need to incentivise the take-up of one job over the other may constitute an objective justification – the national court must decide if, having regard to market forces, the pay differential is proportionate to the end to be achieved.

Seymour-Smith (ECJ 1999)

Facts

• The case involved a challenge by a UK to national legislation which required that an employee be engaged for 2 years before being allowed to avail of protections for unfair dismissal.

• The applicant claimed that the rule adversely affected significantly more women than men.

Issue

• Equal pay – Equal Treatment – Indirect discrimination

Judgment

• As pay is any consideration, in money or in kind, immediate or future, received directly or indirectly from an employer.

• As the compensation in issue is a kind of deferred pay and reparation for benefit foregone. it falls within the scope of Article 141EC.

• Compensation for dismissal does not fall within the scope of Directive 75/117, although rights to reinstatement or reengagement do.

• If the national court finds that statistics show a disadvantage for a large percentage of women or a smaller percentage over an extended period of time, there may be a prima facie case of indirect discrimination which requires an objective justification.

• Where the discrimination arises out of measures adopted by a Member State an objective justification for those measures must show A) that the measures reflect a necessary aim of its social policy and B) are suitable and necessary for achieving that aim.

• In this case, the encouragement of employment is a legitimate aim and if the measures adopted in its pursuit are suitable and necessary, will constitute an objective justification – Member States have a broad margin of discretion in this regard, but such a discretion cannot be used to defeat a fundamental principle of community law.

Defrenne v Belgium (ECJ 1971)

Facts

• The reference arose from a case where a female Belgian air hostess challenged the exclusion of air hostesses from a statutory pension scheme.

Issue

• Equal pay – Statutory schemes

Judgment

• As such schemes operate on a statutory basis without any agreement within the undertaking or occupational branch concerned and are governed by social policy rather than the employer-employee relationship, they do not constitute pay for the purposes of Article 141EC.

• The employer's contributions do not constitute consideration as: A) the terms of the scheme are directly governed by legislation, B) there was no agreement on the scheme within the particular undertaking and C) the retirement scheme was obligatory and applied to general...