EU Law - Equality PDF

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Summary

EU Law Week 19 – Equality Equality law has a clear human rights basis but also a market and economic basis The inclusion of the equal pay provision in art 119 EEC in the treaty of Rome (now art 157 TFEU) was based on an economic rationale and the concern that some MS could gain a competitive advan...

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EU Law Week 19 – Equality 

Equality law has a clear human rights basis but also a market and economic basis

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The inclusion of the equal pay provision in art 119 EEC in the treaty of Rome (now art 157 TFEU) was based on an economic rationale and the concern that some MS could gain a competitive advantage through the use of cheap female labour

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In time the human rights and social basis of equality law was strengthened

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In Defrenne no 2 the court recognized for the first time the economic and social aim of the treaty provision on equal pay and in Defrenne no 3 the general principle of equal treatment and non discrimination was recognised

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EU equality Law first contained protection against discrimination on grounds of nationality and gender until 1999 these were the only protected grounds

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In 1999 through the treaty of Amsterdam the EUs competence in the equality field widened significantly through the inclusion of art 13 EC now art 19 TFEU which enables the EU to take appropriate action to combat discrimination based on sex racial or ethnic origin religion or belief disability age or sexual orientation

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In 2000 two important directives were adopted on the basis of art 13 EC now art 19 TFEU – the race directive and the employment equality directive, covering discrimination on grounds of religion or belief disability age and sexual orientation

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The charter of fundamental rights in art 20 and 23 provides for equality before the law and equality between men and women

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Art 21 contains an open list of discrimination grounds and provides that any discrimination based on any ground such as sex race colour ethnic or social origin genetic features language religion or belief political or any other opinion membership if a national minority property birth disability age or sexual orientation shall be prohibited

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Three directives were adopted in the framework of the 1974 social action programme: 1.

the equal pay directive

2. the equal treatment directive 3. the equal treatment in social security directive 

all but the equal treatment in social security directive have now been replaced by new directives: the equal pay, equal treatment and the occupational schemes directive have all been replaced by the recast directive and the self employed directive has been replaced by directive 2010/41/EU

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following the Maastricht treaty another set of directives was adopted: the directive on pregnant workers the directive on parental leave wand the burden of proof directive

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in 2004 a directive on gender equality in goods and services was adopted

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the equality directive are generally based on a human rights model: the prohibition against discrimination is designed as an individual right and enforced through complains to the courts

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discrimination based on gender is prohibited in employment vocational training occupational social security benefits social security and access to and supply of goods and services while discrimination based on religion or belief, disability age and sexual orientation is prohibited in employment and vocational training only

gender equality 

the treaty provisions on equal pay, now art 157 TFEU, forms the starting point for EU gender equality law

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art 157 TFEU is both horizontally and vertically directly effective and thus applies not only to the MS but also to private employers

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art 157.3 TFEU gives the European parliament and the council the power to adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation including the principle of equal pay for equal work or work of equal value

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sex was defined in P v S and Cornwall Council to include transsexuality and gender reassignment

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the recast directive applies to access to employment including promotions and to vocational training to working conditions including pay and to occupational social security schemes

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the directive bans direct and indirect discrimination and discrimination here includes harassment sexual harassment instruction to discriminate and any less favourable treatment of women related to pregnancy or maternity leave

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direct discrimination refers to the situation where one person is treated less favourably on grounds of sex other than another is has been or would be treated in a comparable situation it requires no motive or intention to discriminate

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exceptions include provisions for the protection of women especially as regards pregnancy and maternity

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the ban of indirect discrimination was first developed by the court of justice and targets measures which are discriminatory in effect

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today indirect discrimination refers to the situation where an apparently neutral provision, criterion, or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless... objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

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Pay 

in the case of Jenkins and Bilka-Kaufhaus related to unfavourable working conditons for part time workers – this si now covered by the part time work directive 97/81

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art 4 of the recast directive contains the principle of equal pay and provides that: for the same work or for work to which equal value is attributed direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration shall be eliminated.

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The concept of pay is broad and refers to the ‘ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly in respect of his/her employment from his/her employer.

Harassment 

Harassment = unwanted conduct related to the sex of a person with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

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Sexual harassment = where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating, or offensive environment.

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This is per se discriminatory.

The revered burden of proof and remedies 

It shall be for the respondent to prove that there has been no breach of the principle of equal treatment

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When ‘persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish before a court or other competent authority, facts from it which may be presumed that there has been direct or indirect discrimination,

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There is an obligation for the MS to take equality between men and women into account when formulating and implementing law regulations and administrative provisions as well as policies and activities in the areas referred to in the directive

Pregnancy maternity and parental leave 

The court first clarified in Dekker that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex as pregnancy is intrinsically linked to the female sex

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This is codified in the Recast directive, gender discrimination includes any less favourable treatment of a women related to pregnancy

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In case law the court has applied this principle to appointments dismissal and employment and working conditions the recast directive sates a women on maternity leave shall be entitled after the end of her period of maternity leave to return to her job or to an equivalent position on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence

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In 1992 the directive on pregnant workers was adopted and applies to workers as defined by EU law in the areas of free movement of workers and equal pay

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The directive obliges the employer to assess health and safety risks and to take necessary measures to avoid situations where workers are exposes to such risks

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If t is not possible to adjust the working situation the employee has a right to leave with pay and benefits intact

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Workers are entitled to three specific forms of protection: 1. To time off without loss of pay in order to attend antenatal examinations 2. A continuous period of at least 14 weeks maternity leave of which at least two mandatory weeks must be allocated before and/or after confinement 3. Protection giant dismissal during the period from the beginning of their pregnancy to the end of their maternity leave

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Parental Leave Directive replaced in 2010 by a new Directive. It lays down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents.

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Men and women are entitled to an individual right to parental leave on the grounds of the birth or adoption of a child to take care of that child until given age up to eight years

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The parental leave must be granted for at least a period of four months

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EU law does not provide much actual protection for employees when it comes to reconciling parenthood and family life – many crucial issues are left to the MS to regulate

Gender equality beyond the work place 

The equal treatment in social security directive 79/7 aims at the progressive implementation of the principle of equal treatment for men and women in matters of social security and social protection

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The ban on direct and indirect discrimination applies to the working population, and to statutory social security schemes in relation to sickness, invalidity, old age, accidents at work and occupational diseases, and unemployment.

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It does allow states to maintain discriminatory state pension ages

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The directive on gender equality in goods and services adopted in 2004 on the basis of art 13 EC extends the scope of gender equality law to the access to and supply of goods and services

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The aim of the directive is to lay down a framework for combating discrimination based on sex in access to and supply of goods and services with a view to putting into effect in the MS the principle of equal treatment between men and women.

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Direct and indirect discrimination, harassment and sexual harassment and instruction to discriminate are all prohibited, and these bans apply to goods and services which are available to the public in both public and private sectors, as long as they are offered outside the area of private and family life.

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Art 5.1 of the directive provides that MS must ensure in all new contracts that the use of sex as a factor in the calculation of premiums and benefits in insurance and related financial services will not result in differences in an individuals premiums and benefits – such as there sue to be higher insurance premiums to young male drivers over young female drivers

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Test-Achats – the Court used Art 21 and 23 of the ECHR and the general principle of equal treatment for men and women to invalidate Art 5(2) which allowed for an exemption to the main rule and a possibility for the MS to permit proportionate differences in an individual’s premium and benefits in these cases. UK relied on Art 5(2) to justify allowing the insurance industry to charge higher insurance premiums to young male drivers. The Court argued that this was incompatible with Art 21 and 23 of the Charter

Discrimination on grounds of racial or ethnic origin 

The race directive 2000/43 aims at combating discrimination on grounds of racial or ethnic origin

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The directive applies in employment vocational training social protection including social security and health care social advantages education and access to and supply of goods and services and contains protection against direct and indirect discrimination harassment and instructions to discriminate as well as the rule on a reversed burden of proof

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Art 2(2)(a) of the Race Directive states that direct discrimination requires one person to have been treated less favourably than another.

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In Firma Feryn an employer said that he would not recruit employees of a certain ethnic or racial origin – this constituted direct discrimination even though there was no identified victims – this has been called discrimination by declarations

Discrimination on other grounds

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The Employment Equality Directive lays down a general framework for combating discrimination on the grounds of religion or belief, disability, age, or sexual orientation, as regards employment and occupation.

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It protects against the same as the Race Directive.

Disability 

Art 5 regulates the issue of reasonable accommodation and states that employers should take appropriate measures where needed in particular to enable a person with a disability to have access to participate in or advance in employment or to undergo training unless such measures would impose a disproportionate burden on the employers

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In Coleman a women was found to have suffered discrimination when she was treated as less favourably and harassed because of her sons disability – this is transferred or associated discrimination

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The EU MS and the EU have signed the UN convention on the rights of persons with disabilities

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In HK Dannmak the court aligned its interpretation of the concept of disability with that of the UN convention and declared that the convention formed an integral part of the EU legal order

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The court also clarified that a reduction in working hours may constitute one of the reasonable accommodation measures referred to in art 5

Age 

Old and young people are protected against discrimination

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Discrimination on the grounds of age can be justified to a greater extent than discrimination on other grounds

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Art 6 – MS ‘may provide that differences of treatment on grounds of age shall not constitute discrimination, if, in the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary

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In Mangold the court declared that not only was age discrimination covered by the employment directive but also that EU law encompassed a general principle of non discrimination on grounds of age which might have some form of horizontal application

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Mandatory retirement is covered by the employment equality directive and the Court basically deems rules on mandatory retirement to be age discriminatory but can nevertheless be justifiable.

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The MS have been given a large margin of appreciation, and when applying Art 6 the Court has found the differences of treatment on grounds of age to be objectively and reasonably justified by legitimate aims. Such as intergenerational fairness in terms of access to employment, prevention of humiliating forms of termination of employment, and a reasonable balance between labour market and budgetary concerns.

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In addition, the means for achieving these aims have frequently been found appropriate and necessary.

Remedies and reform 

Both the Race Directive and the Employment Equality Directive contain provisions on victimization, sanctions and remedies and procedures.

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In 2008 the Commission put forward a proposal on the basis of Art 19 TFEU for a directive aimed at extending the protection against discrimination on grounds of religion or belief, disability, age, sexual orientation, beyond working life to the areas of social protection, including social security and health care, social advantages, education and access to and supply of goods and services in parallel with the Race Directive.

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The proposal is still pending.

Comparisons with the other equality directives 

Equality Directives are based on the principles of non-discrimination and equal treatment as a way to protect employees and improve the quality of flexible work – in common with work directives.

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Neither of these principles are phrased expressly in terms of prohibitions on direct and indirect discrimination or harassment and instruction to discriminate in the atypical work directives.

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These principles of non-discrimination and equal treatment display a basic difference with regard to traditional equality law. Here, equal treatment is not based on the person characteristics of the employee (race, age, etc), but instead on the employment contract and its form and content.

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Eg. Wippel – full-time workers working under a contract which fixed a working week of 38.5 hours were found not to be comparable to Ms Wippel, who was working on a work on demand contract.

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