Sex Discrimination - Cases/facts

Question 1

Article 157

Answer 1

equal pay for male and female workers for equal work or work of equal value

Question 2

Directive 75/117

Answer 2

Equal pay for equal work directive

Question 3

Directive 2006/54

Answer 3

Equal treatment in employment directive

Question 4

Defrenne v SABENA

Answer 4

– Sued previous employer using article 157 (CJ held to have direct effect). CJ ruled in Defrenne’s favour, however only propspective

Question 5

Rinner-Kuhn

Answer 5

Where part-time workers were not entitled to sick pay. This is indirect discrimination as in reality most part-time workers are women due to child care restraints.

Question 6

Jenkins v Kingsgate

Answer 6

Full-time workers paid more than part-time workers even though they do the same job. Not indirect discrimination if objectively justified, and unrelated to sex. (informed later directive)

Question 7

Enderby v Frenchay

Answer 7

Where one category of workers is paid less than another category though work assumed to be of equal value, yet one category are men and other women. Here indirect sex discrimination.

Question 8

Bilka 3 rules for objective justification

Answer 8

Serves real need of undertaking, Appropriate of objective pursued (Proportionality), Necessary to achieve that end, it may be justified

Question 9

What case shows that the necessary aims of social policy may jusitfy sexual discrimination?

Answer 9

Rinner-Kuhn

Question 10

Dismissed transsexual, this was held to be ground of gender so was upheld under article 157

Answer 10

P v S & Cornwall

Question 11

Grant v SW Trains Ltd

Answer 11

Gay couple not granted travel benefits as not gender issue but sexual preference issue

Question 12

article 19 TFEU –

Answer 12

General anti-discrimination article.

Question 13

Anglestern (D75/117)

Answer 13

Equal treatment extended to work of equal value in

Question 14

Rummler v Dato-Druck

Answer 14

Classification system must be the same for men and women. But can include a consideration of physical effort, as long as this is not sexually discriminatory

Question 15

What are the criteria for job classification in the Royal Copenhagen case?

Answer 15

established test for the classification of jobs; The nature of work, The training requirements, The working conditions

Question 16

Coote v Granada

Answer 16

The directive also protects against victimisation and poor references

Question 17

D2006/54 derogations art 14(2);Objective justification of discrimination where;

Answer 17

sex is determining factor, For protection of women, particularly pregnancy & maternity, For the purpose of positive discrimination

Question 18

Commission v UK (male midwives)

Answer 18

Restrictions on male midwives (later lifted)

Question 19

Johnston v Chief Constable of the RUC

Answer 19

Refusal to renew officers contract because of new policy excluding women from carrying guns. Thought that terrorists would target female police officers. Sex of worker is determining factor in unequal treatment, but justified.

Question 20

Sirdar v Army Board

Answer 20

Not allowed to serve on front line as might have to take up arms. Was not soldier, was support. Contrast with Kreil, which was not allowed as disproportionate

Question 21

Hofmann v Barmer Ersatzkasse

Answer 21

Parental leave but only for mothers. Parental leave directive 96/34

Question 22

Ministere Public v Stoeckel

Answer 22

Blanket ban on women undertaking night work not allowed

Question 23

Tele-Danmark

Answer 23

Rights of employee are not affected by non-disclosure of pregnancy

Question 24

Wiebke Nielsen

Answer 24

Employee not obliged to declare pregnancy at recruitment stage

Question 25

Dekker

Answer 25

Woman applied for job, rejected on basis of pregnancy and employer could not afford to cover cost of hiring another worker for maternity leave. Judged that this contravened Equal Treatment Directive 76/207 now article 2(2) of directive 2006/54.

Question 26

Hertz

Answer 26

Pregnancy related illness after maternity leave has expired it is possible to sack on that basis. However not possible to take into account absences due to pregnancy in decision to fire.

Question 27

• Pregnancy and maternity directive 92/85

Answer 27

Prohibits dismissal from beginning of pregnancy till end of maternity leave

Question 28

Tes-Achtats

Answer 28

Belgian case taken to ECJ challenging legality of Gender Directive 2004/113 which allowed use of gender in calculation of premiums. From 21st December 2012 no longer allowed to use gender in the calculation of insurance premiums.