EU Law - Equal Treatment (Social Policy)

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  • Created by: Alasdair
  • Created on: 12-11-20 00:44
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  • 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
      • 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
    • 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.
      • 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
      • 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
          • 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
            • 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
    • 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.
    • 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

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