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Flashcards in Sex Discrim Cases Deck (33):

Defrenne v SABENA

Sex discrimination law defined.
- Gave direct effect to Art 157



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


Jenkins v Kingsgate

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)



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



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


P v S Cornwall

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


Grant v South West Trains

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


Garland v British Rail Enineering

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


Barber v Guardian

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



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


Angestellten Betriebsrat

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



- 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


Coote v Granada

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


Commission v UK Male Midwives

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


Johnston v Chief Constable

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


Sirdar v Army

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


Hofmann v Barmer Ersatzkasse

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



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



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



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


Burton v British Railway Board

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


Roberts v Tate

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



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


Larsson v Dansk Handel

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



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


Jiminez Melger

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


Wiebke Busch

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



Rights of employees not affected by non-disclosure of pregnancy



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.


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

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


Royal Copenhagen

criteria for job classification
-nature of work
- training requirements
- working conditions



pension benefits were pay
- they arose as a result of an employment relationship between company and individual



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