EU Law - Equal Treatment (Social Policy)
- Created by: Alasdair
- Created on: 12-11-20 00:44
View mindmap
- Equal Treatment (Social Policy)
- What is Equal Treatment?
- Article 14 of recast Directive
- prohibits direct and indirect discrimination on grounds of sex in relation to:
- access to employment
- access to training and employment and working conditions, including dismissal and pay
- prohibits direct and indirect discrimination on grounds of sex in relation to:
- Marshall v Southampton & SW Hampshire Area Health Authority (case 152/84) [1986] ECR 723
- ECJ ruled discriminatory retirement ages breached old Equal Treatment Directive
- Miss Marshall was therefore able to rely on its vertical direct effect against her employer, an emanation of State
- Same reasoning would apply to recast Directive
- Article 14 of recast Directive
- Exceptions to principles of Equal Treatment
- recast Directive
- Like old Equal Treatment Directive, does allow for fact some occupations may be suited exclusively to male or female workers
- e.g. Commission v UK
- ECJ ruled midwifery could be restricted to women.
- e.g. Commission v UK
- Like old Equal Treatment Directive, does allow for fact some occupations may be suited exclusively to male or female workers
- Occupational Requirement Exception
- Article 14(2) of recast Directive
- employer would have to demonstrate two things
- reserving of job for one or other sex was genuine and determining occupational requirement
- Its actions were proportionate
- employer would have to demonstrate two things
- Article 14(2) of recast Directive
- Case Law on Occupational Exception
- Johnston v Chief Constable of the RUC (case 222/84) [1986] ECR 1651
- ECJ considered policy of RUC where women ceased to be employed as full-time members of RUC Reserve
- RUC defended policy on grounds that decision had been made full-time members would be issued with firearms
- Two main reasons
- Officer carrying firearms were more likely to be target for assassination
- felt public would find this increased risk to women unacceptable
- Women were more likely to be overpowered and have their weapons taken from their assailants
- Officer carrying firearms were more likely to be target for assassination
- Two main reasons
- Mrs Johnston challenged policy since she felt appropriate training could be given to women to address these risks.
- Argued excluding women from these posts was disproportionate
- Outcome
- ECJ noted any derogation from principle of equality must be interpreted strictly
- Accepted, in principle, it was possible for reasons such as those put forward by RUC to fall within derogation.
- For national court to decide if reasoning was in fact well founded
- Accepted, in principle, it was possible for reasons such as those put forward by RUC to fall within derogation.
- ECJ suggested it might be more proportionate to reassign women concerned to other duties which did not involve handling of firearms
- Member States should review activities concerned periodically to ensure use of this exception remained appropriate
- ECJ noted any derogation from principle of equality must be interpreted strictly
- Johnston v Chief Constable of the RUC (case 222/84) [1986] ECR 1651
- recast Directive
- Pregnancy
- the Pregnancy Directive
- Council Directive 92/85
- introduction of measures connected with pregnancy and maternity leave includes a number of rights to maternity leave and pay.
- doesn't include, e.g. protection for women whose application for job is refused on grounds of her pregnancy
- Been held by ECJ discrimination against women on grounds she is pregnant is directly discriminatory
- Article 2(2)c) of recast Equal Treatment Directive
- Any less favourable treatment of a woman related to pregnancy or maternity amounts to discrimination
- Useful if Pregnancy Directive doesn't cover circumstance of discriminatio
- Article 15 of recast Directive
- Woman on maternity leave entitled to:
- return to job or equivalent post on terms and conditions no less favourable to her
- benefit from any improvement in working conditions to which she would have been entitled during her absence.
- Woman on maternity leave entitled to:
- the Pregnancy Directive
- Positive Action
- Permitted to certain degree by EU
- Article 157(4)
- Principle of equal treatment shall not prevent any Member State from maintaining or adopting positive action
- doesn't compel states
- Article 3 of recast Directive
- Abrahamsson and Anderson v Fogelqvist (case C-407/98) [2000] ECR I-5339
- ECJ ruled it wasn't acceptable for a woman less qualified than man to be favoured over the man.
- Kalanke v Freie Hansetadt Bremen
- ECJ ruled that a woman, equally qualified to a man, should not be favoured.
- Hellmut Marschall v Nodrhein-Westfalen
- ECJ ruled: A man can rebut presumption woman (equally qualified to him) should be favoured by pointing out his overriding characteristics he possesses
- What is Equal Treatment?
Comments
No comments have yet been made