EU Law - Sexual Equality III (Social Policy)
- Created by: Alasdair
- Created on: 11-11-20 22:18
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- Sexual
Equality III (Social Policy)
- Role of national court
- Bilka-Kaufhaus GmbH v Von Hartz (case 170/84) [1986] ECR 1607
- Details
- Company's occupational pension scheme
- Full-timers qualified to take part in scheme; part-timers not
- What were reasons put forward by employer to justify its decision to exclude part-timers from pension scheme?
- Part-time work actively discouraged by employer since part-timers tend to refuse to work late afternoons and Saturdays.
- Inclusion in pension scheme therefore incentive to encourage full-time work.
- Part-time work actively discouraged by employer since part-timers tend to refuse to work late afternoons and Saturdays.
- What was test formulated by ECJ for use by national courts in deciding if reason was objectively justifiable?
- Measures (ie difference in treatment) must:
- correspond to a real need on part of employer
- be appropriate to achieving objective pursued
- be necessary to that end.
- principle of proportionality
- Measures (ie difference in treatment) must:
- Details
- Bilka-Kaufhaus GmbH v Von Hartz (case 170/84) [1986] ECR 1607
- Dealing with legislation that is indirectly discriminatory
- ECJ reformulation of test from Bilka to apply to state
- State must objectively justify national legislation which is prima facie indirectly discriminatory by proving that:
- Law reflects legitimate aim of its social policy
- aim is unrelated to any discrimination based on sex
- means that is suitable for attaining that aim
- State must objectively justify national legislation which is prima facie indirectly discriminatory by proving that:
- R v Secretary of State for Employment ex p Seymour-Smith (case C-167/97) [1999] ECR I-623
- UK government successfully justified allegedly indirectly discriminatory legislation
- ECJ reformulation of test from Bilka to apply to state
- Other prohibitions
- recast Directive also includes following within scope of discrimination (Article 2(2))
- (a) harassment and sexual harassment (Article 2(2)(a))
- types of conduct defined in Article 2(1)(c)
- (b) instructions to d iscriminate against persons on grounds of sex
- Article 2(2)(b)
- (c) any less favourable treatment of a woman related to pregnancy or maternity leave within meaning of Directive 29/85
- (a) harassment and sexual harassment (Article 2(2)(a))
- Article 24
- recast Directive also requires Member States to protect employees who seek to enforce their rights to equal treatment from victimisation by their employers
- recast Directive also includes following within scope of discrimination (Article 2(2))
- Role of national court
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