Sex Discrim Cases

Question 1

Defrenne v SABENA

Answer 1

Sex discrimination law defined.

- Gave direct effect to Art 157

Question 2

Rinner-Kuhn

Answer 2

Indirect sex discrimination. German law excludes workers doing less than 10 hours a week from getting sick pay. Most people doing less than 10 hours are women
- necessary aims of social policy may justify sex discrimination

Question 3

Jenkins v Kingsgate

Answer 3

Paying part time workers less than full time workers is not automatically unlawful discrimination
- Not indirect discrimination if objectively justified, and unrelated to sex. (informed later directive)

Question 4

Enderby

Answer 4

May be indirect discimination if two categories of workers are paid differently, and most of one category is predominantely female, when the work is of equal value

Question 5

Bilka-Kaufaus

Answer 5

Can be objectively justified if:
1 correspond to real need of business
2 are appropriate with a view to achieving objectives pursued
3 are ncessary to achieve those objectives

Benefits paid to employees under pension scheme constitute pay within meaning of Art 17 and scheme discriminated against women

Question 6

P v S Cornwall

Answer 6

Consider transexuals as belonging to the gender they occupied BEFORE they had their operation
- discrimination against them is a gender issue

Question 7

Grant v South West Trains

Answer 7

Employer requires stable relationship between members of opposite sex for travel benefits. Discrimination based on sexual orientation is NOT sex discrimination under EU law - homosexual relationships under EU law do not equate to marriage
BUT Art 19 TFEU now covers this and prohibits discrimination on sexual orientaiton

Question 8

Garland v British Rail Enineering

Answer 8

Special travel facilities for retired employees constituted pay. Art 157 definition of pay is broad

Question 9

Barber v Guardian

Answer 9

Different pension entitlements on redundancy for men and women based on pension ages specified in national statutory schemes breach Art 157
Discrimination is usually in favour of men, but can apply to women too

Question 10

Worringham

Answer 10

Contributions paid by employer directly into occupational scheme only for male employee under 25 years old was pay under Art 157

Question 11

Angestellten Betriebsrat

Answer 11

Professional training may be valid criterion for identifying whether male and female employees were engaged in the same work even though tasks performed were identical

Question 12

Rummler

Answer 12

• classification system must be the same for men and women

- can consider physical effort but this cannot must be objective and necessary and cannot be discriminatory

Question 13

Coote v Granada

Answer 13

Protection against victimisation under Directive 2006/54 extends to references by former employer and victimisation

Question 14

Commission v UK Male Midwives

Answer 14

Male midwife ban was allowed by ECJ due to personal sensitivities involves, but now Sex Discrimination Act means males can be midwives

Question 15

Johnston v Chief Constable

Answer 15

Context of certain policing activities may be such that sex of officers constitutes determining factor in carrying them out

Consider proportionality - cant go further than necessary to achieve desired aim

General policy must be reviewed periodically in light of social developments to make sure it can be maintained legitimately

Question 16

Sirdar v Army

Answer 16

Exclusion of women from front line combat justified because of particular activities undertaken by such troops and circumstances in which they were undertaken - women cant join Marines
- contrast with Kriel

Question 17

Hofmann v Barmer Ersatzkasse

Answer 17

Law granting leave to mothers but not to fathers after birth was justified under Art 2(3) of Directive 76/207 as it is not for the EU to settle matters of family regarding division of responsibility between parents

Question 18

Abdoulaye

Answer 18

Lump sum payments to female employees taking maternity leave is not sex discrimination under Art 157 when payment is designed to redress occupational disadvantage from being away from work on maternity leave

Question 19

Stoeckel

Answer 19

Protective mreasures in form of complete prhibition on night work by women but not men is NOT permissible

Question 20

Abrahammson

Answer 20

Positive discrimination under Art 2(8) Directive 76/207 cannot be used to justify appointing a woman in place of a more qualified man

Question 21

Burton v British Railway Board

Answer 21

Different ages for access to voluntary redunfancy scheme NOT contrary to Directive 76/207 because different ages are tied to different ages at which men and women become eligible for state pention

Question 22

Roberts v Tate

Answer 22

Redundancy scheme entitled mena nd women to receive an early pension at same age so is NOT discriminatory

Question 23

Dekker

Answer 23

Breach of Art 2(2)(c) Directive 2006/54 because she wasn’t employed because she was pregnant. Increased costs to employer did not justify decision not to employ her

Question 24

Larsson v Dansk Handel

Answer 24

Once maternity period is over, illness even if connected to pregnancy is to be treated like any other

Question 25

Hertz

Answer 25

Employer may not be in breach of equal treatment principle if he dismisses a woman whose pregnancy relatied illness resulted in repeated absences from work after maternity leave had expired
- however you cannot consider pregnancy related absences when you fire them

Question 26

Jiminez Melger

Answer 26

Dismissal of worker because she is pregnant is direct discrimination regardless of contract being fixed or open ended

Question 27

Wiebke Busch

Answer 27

No obligation for prospective employee to inform employer they are pregnant during recruitment stage

Question 28

Tele-Danmark

Answer 28

Rights of employees not affected by non-disclosure of pregnancy

Question 29

Tes-Achtats

Answer 29

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.

Question 30

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

Answer 30

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

Question 31

Royal Copenhagen

Answer 31

criteria for job classification

• nature of work
• training requirements
• working conditions

Question 32

Tenoever

Answer 32

pension benefits were pay

- they arose as a result of an employment relationship between company and individual

Question 33

Barber

Answer 33

different pension entitlements on men and women is discriminatory against men.