EU law prohibits discrimination generally over all subjects. There are many heads of discrimination that are applied differently and rely on different regulations and directives. On the syllabus I am working from only sex discrimination is covered, which is the one I will be covering in this post.
As time has developed, the need for equality for men and women has become more and more pressing. The general direction of the EU is to give equality to all of their citizens. Sex discrimination is specifically prohibited in Article 157 of the TFEU which states that ‘Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied’. Equal treatment for men and women has also been clarified in the Recast Directive. This was the directive that was covered when looking at Free movement of Workers.
One of the big and recent sex discrimination examples is that of Birmingham City Council. In this case, there has been 49 accounts of women being excluded from bonuses. This number is growing, and it is expected to be approximately 2,000 claims. When totalled, this could reach an excess of £200, which is a huge amount for a local council to have to pay out of their own pocket for sex discrimination.
Sex discrimination applies to Pay and Treatment in the work place.
Article 157 TFEU states that both sexes must be paid equally for their work, or their work of equal value.
A 157(2) and Article 2(1) of the React directive state that pay is ‘cash or in Kind. This is essentially anything that can be monetised. The following cases are examples of things that can, and cane be monetised.
Garland- Travel concessions were classed as pay.
Barber- Recumbency payments were classed as pay.
Seymour- Unfair dismissal resulting in a loss of pay was counted as pay.
Defrenne- Contributions towards a state pension was not classed as pay.
Bilka Kaufhaus- Contributions towards a private pension were classed as pay.
Webber- A Part State, Part Private pension will also be defined as Pay.
Treatment and Other Conditions
Discrimination also covers treatment and other conditions in the work place. This is covered in Article 1 of the Recast Directive stating that Equal opportunities and treatment for men and women. Treatment can include a wide variety of things and can be seen to be anything that is not monetised. Some things such as holiday can be seen to be both. Some could argue that it can be monetised if the holiday is paid. Some would argue that it could be conditions if you have to get holiday granted by a specific person or the company and are given holiday at less important times of year. This distinction isn’t too important, but it is to be noted that sex discrimination goes a lot wider than just pay, it is about treatment and conditions in the work place also.
The Pregnancy Directive applies specifically to people who are in employment and are pregnant. This prevents these women from being treated less favourably because they are pregnancy. For example, they are not allowed to be denied a promotion just because they may be going on maternity leave soon. This does not cover women who are unemployed and looking for work. This would be covered in the Recast Directive (Article 15) and not the pregnancy directive.
Article 4 of the React directive specifically prohibits discriminatory pay, and Article 5 directly prohibits discriminatory treatment in the work place. It is then important to look at whether there is indirect discrimination or direct discrimination.
This is where they are expressly stating that is because an individual is treated less favourably/paid less because of their sex. It is defined in Article 2(1)(A) of the recast directive as ‘treated less favourably on grounds of sex than another is/has/would be in another comparable situation’.
In order to justify direct discrimination, as states in Article 14(2), there needs to be an occupational requirement. In order for an employer to justify direct discrimination they need to prove 2 things:
- That reserving the job for one sex or another was a genuine and determining occupational requirement
- And that it was proportionate.
This is a very high standard; however it is possible. In the case of Commission v UK, the state sufficiently justified that men could be discriminated against when it comes to the jobs of midwives. This isn’t the case anymore and the law changed on this after this case occurred.
Another case where this was successfully justified was the case of Johnson. This was an Irish case which regarded jobs that involved firearms. Discrimination against women applying for these positions were allowed as it was on genuine social policy at the time. Nowadays, I doubt this would be allowed either.
Indirect discrimination is where one sex is put at a disadvantage because they are in certain circumstances. The Recast directive defined it under Article 2(1)(B) as ‘an apparently neutral provision, criterion or practice that would put one sex as a disadvantage to the other’.
When justifying indirect discrimination, it is important to look at the case of Bilka Kaufhaus. In this case it was stated that objective justification was needed to justify indirect discrimination. This means that 3 criteria must be satisfied:
- The law/discrimination reflects a legitimate aim of its social policy
- The aim is unrelated to any discrimination based on sex,
- And it is suitable for attaining that aim.
These criteria were affirmed and successfully used to justify indirect discrimination in the case of Seymour-smith. This was the case regarding unfair dismissal. They first argued that unfair dismissal was not pay. The courts stated that it was as it accounted for the loss of earnings in this period. However, they did manage to justify it by satisfying the criteria above.
For indirect discrimination, it may be justified under article 14(2) in the same way as a direct discrimination case (Occupational Requirement).
When looking at this area of law, it is also important to look at any positive discrimination and see whether that is prohibited.
Generally positive discrimination is void and not allowed. This is because usually when there is positive discrimination, it may also cause negative discrimination also. However, the case of Marchall identified that when there are workers of equal qualifications and equal ability, they may be positively discriminated against. For example, if there was a man and a woman with the same qualifications, and the company had less women than men, they would be able to hire the women on the grounds that she is a woman.
However, the case of Fogelquest states that you cannot disregard qualifications for sex. They must be of equal qualifications for any positive discrimination to be used.
Other considerations when looking at Sex discrimination
When looking at these type of situations, it is also important to look at direct effect, indirect effect and state liability.
Direct effect and its principles are important as it gives rise to regulations, treaty articles and directives acting vertically (as long as the implementation date has passed- Ratti) as long as they all satisfy the Van Gend criteria of being clear precise and unconditional. It is also important to look at the supremacy of EU law to show that these sex discrimination laws will always take precedence over any national law that tried to allow sex discrimination or a wider basis (Costa v ENEL).
Alongside this, Indirect effect is important for looking at is a state has not implemented their law properly or at all, and someone is looking to rely on it horizontally (against a private employer). We can then use the case of Von Coulson to interpret any national law to fit in line with the EU provisions.
And if this doesn’t work, then state liability may be able to be claimed for the losses that are incurred because of the state’s failure to implement EU law properly (If it satisfies the Francovich criteria).
By Woodrow Cox