Workshop 3 - Social Policy in European Union Law PDF

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Social Policy - articles, directives and notes relating to how the European Union and its laws guide discrimination in the workplace...

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WS3 - Social Policy

Step 1: Article 157 TFEU and Judgement from Defrenne and SABENA Aims: 1. To promote fairness and equality, and to ensure social progress and seek constant improvement of living and working conditions, 2. To avoid situation where an MS who implements equal pay is at economic competitive disadvantage Legislation of Discrimination in the Workplace Article 157 TFEU – men and women should be paid equally for doing equal work or work of equal value Article 157 TFEU has direct effect (both vertical and horizontal): Defrenne v SABENA (No. 2) (case 43/75). Equal Treatment Directive 2006/Recast Directive - implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions

Step 2: does the issue concern pay or treatment? Pay (what constitutes it) o Salary (Article 157(2) TFEU)  Salary or any other consideration, whether cash or kind, indirect or direct, in respect of employment from employer o Travel concessions o Travel concessions to families of retired  Garland v British Rail Engineering Ltd o Statutory redundancy pay  Barber v Guardian Royal Exchange Assurance Group o Pensions Payments  STATE - Defrenne v Belgium NO – is not pay  PRIVATE – Bilka-Kaufhaus YES – is pay o Damages for unfair dismissal  Ex p Seymour Smith Treatment  Individual must rely on recast Directive 2006/54, Article 14(1): o implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions

Step 3: Direct and Indirect Discrimination Direct Discrimination – Article 2(1)(a) of recast Directive Where one person is treated less favourably on grounds of sex, than another is, has been, or would have been in a comparable situation (DEFINITION ALSO APPLIES FOR USE IN ART 157 TFEU)  Examples: o Defrenne v SABENA – male cabin crew paid more than female cabin crew ( o Dekker – woman not hired because she was preganant o Webb v EMO woman fired because she was pregnant Pregnancy  Pregnancy Directive 92/85  Only used for dismissal, not hiring  Courts still upheld that discrimination against women on these grounds is direct discrimination 

Indirect Discrimination – Article 2(1)(b) of Recast Directive 

Where a neutral provision, criterion or practice would put persons of one sex at particular disadvantage compared with persons of other sex (unless provision is objectively justified)

Step 4: Justifications/Defences of Direct and Indirect Discriminiation Defences of Direct Discrimination 1. Occupational requirement – Art 14(2) Recast Directive  Employer would have to demonstrate: a) Reserving job for one sex was genuine and determining occupational requirement (requirement of job) b) Its actions were proportionate to achieving its aims c) Doesn’t go beyond what is required to achieve aims o Bela-Muhle v Grows Farm (skimmed milk case from principle of proportionality)  Commission v UK – midwifery restricted to women  Johnston v Chief Constable of the RUC  Derogations from equality to be interpreted strictly  Up to national courts to decide whether reasoning for discrimination is well founded 2. Positive discrimination – Art 157 (4) TFEU and Art 3 Recast Directive  Principle of equal treatment does not prohibit MS from adopting measures for under-represented sex to pursue vocation  Abrahamson & Anderson v Fogelquist o Cannot favour lesser qualified individual  Kalanke v Freie Hansesdatd Bremen

o Cannot automatically favour an individual if they are equally qualified  Hellmut Marshall o Where man and woman are equally qualified - presumption that woman should be favoured o Can be rebutted by man if he points out his overriding characteristics  Art 3 Recast Directive – maintain and adopt measures within meaning of Art 157 with view of ensuring full equality  NB: Art 157 TFEU allows MS to permit positive action, but does not compel them to do so Justifications of Indirect Discrimination - Art 2(2)(b) Recast Directive Article 2(1(b) of the Directive goes on to say that apparent indirect discrimination can be ‘objectively justified by a legitimate aim’ if ‘the means of achieving that aim are appropriate and necessary’. Burden of Proof – Art 19 Recast Directive 1. Claimant must establish persons of his/her sex are adversely affected 2. If done, burden of proof shifts to defendant to justify measure Bilka Test – Bilka Kaufhaus  

Part-time workers (majority female) at company not allowed to take part in pension scheme, but full-time workers (majority male) were Established test that employees must show that measures 1. Correspond to legitimate aim/need 2. Are appropriate 3. Are necessary

Discrimination claims against the state 

In discrimination claims agasint the state, the state must prove that: 1. Law reflects legitimate aim of social policy 2. Aim is unrelated to discrimination based on sex 3. Means justifies ends

IF SPEAKING ABOUT RECAST DIRECTIVE – MENTION DIRECT AND INDIRECT EFFECT

o R v Sec of State (ex p Seymour Smith) - UK government successfully justified legislation that was allegedly indirectly discriminatory...