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.
        • 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
    • 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
      • 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
    • 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
      • 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


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