Gender equality was introduced by the Treaty of Rome in 1957.
Treaty of Amsterdam increased the power by introducing
Article 19 TFEU on combating discrimination.
The Charter of Fundamental Rights has also added additional
protection for citizens.
Article 157 TFEU stemmed from the Defrenne case, in
which the French government were worried that they were at an economical
disadvantage because their law was already enforcing equal pay for men and
women, where other member states were not yet obliged to do so. Making Article
157 TFEU directly effective in all member states meant that not only were
France back on par with the other member states, who now had to adhere to the
EU provisions providing equal pay for men and women, but it also gave
additional rights to women across Europe!
Gender equality is now governed by the Recast Directive
2006/54 where previously it existed in the form of 3 different equal
treatment directives. Namely: equal pay, equal treatment and social security.
Discrimination in pay:
Defrenne v Sabena demonstrated DIRECT discrimination, whereas Jenkins
demonstrated INDIRECT discrimination. Cadman wasn’t a case of gender
discrimination but of other discrimination in the work place. It established
that paying longer-serving employees a higher wage than newer employees was
discrimination where the difference in pay was not based on skills. Cadman set
a precedent that all wages must be based on the skill set of the employee, as
opposed to any other grounds such as gender or length of service.
Meaning of pay:
Direct payment would be in the form of money. Indirect payment can include all
the additional benefits provided by an employer in exchange for work. In Garland
the court held that travel facilities constituted pay, thus when retired males
were permitted to continue using their travel benefits but the women were not,
it gave rise to discrimination. In Rinner-Kuhn the court established
that sick pay constituted payment in kind. In Barber the court held that
redundancy pay was also a form of payment, whether or not the person was
voluntarily made redundant. In Gillespie the court said that maternity
benefits were pay, although it’s important to note that there can be no
comparator when the case involves pregnancy, for obvious reasons. In Bilka-Kaufhaus
an occupational pension constituted payment.
Work of equal value:
The law on gender equality in the work place started off on equal pay for equal
work, i.e. where the male and female were doing the exact same job but being
paid differently. However, all legislation changes since the Treaty of Rome
have extended this principle further, and now the EU is equally as concerned
with ‘equal pay for work of equal value’. This means that the male and female
do not need to be doing the same job but their contributions to their
respective fields should be seen as equally weighted. Enderby concerned
a pharmacist and a psychologist being paid different wages, the female
counterpart claimed that she was being discriminated against as they were doing
work of equal value. The court agreed that although the job tasks were
different, they were doing equal value work. This may seem confusing because
it’s so difficult to quantify the roles done in different professions and
whether their contributions are ‘equal’, however, the NHS have adopted a system
of ‘banding’ where this works surprisingly well. The employees of the NHS will
be banded within their fields, depending on their level of expertise, so whilst
some jobs (for example, a nursing assistant) may go in as a Band 1 and may only
go up to a Band 4, others (for example, a surgeon) may go in at a Band 6 and go
up to the highest level.
One case where the courts held it was legitimate to pay the
male and female differently was Brunnhofer, in which two employees of a
bank employed at the same time and in the same job category, fulfilled
different roles and tasks. The male was paid more because his work involved
more arduous tasks than his female counterpart. She claimed it was
discrimination but the court disagreed.
Burden of proof:
Always lies with the complainant to prove that she has been discriminated
against. Must prove 1) they have been paid less, using a comparator to prove
this, and 2) they were doing work of equal value. In Enderby the burden of proof shifted to the employer,
which was an exception to the
Positive action: benefits minority groups but disadvantages majority groups. For example, always
choosing females over males; is similar to positive discrimination.
In Kalanke the employers had a rule that where a male
and female candidate, at interview, were equally qualified for the job, they
would always hire the minority candidate to restore the gender balance in the
firm (for example, a lack of males in the firm, would employ the male). It was
a neutral rule. Following this case, the Member States and the Commission
expressed dissatisfaction with the way Kalanke was decided, since it was often
necessary to restore the gender balance in a company. The Commission clarified
the position and when the next case, Marshall came along, it was decided
that it would NOT be discriminatory to choose the under-represented sex where
the candidates were equally qualified, however the firm should be flexible with
that rule and not entirely rigid. Finally Abrahamsson stated that there
could be no preference towards a particular gender or minority party.
Pregnancy: Directive 92/85/EEC provided additional rights for those women already in work
as opposed to those looking for work. The Dekker case occurred prior to
the creation of the Directive and certainly demonstrates why further law was
required in the area, as a woman was simply refused employment after interview
on grounds of being pregnant.
However, since the enactment of the Directive, there have
still been instances of discrimination. Webb for example, concerned an
employee on maternity leave who was replaced with another female, who turned
out to be pregnant. The employer dismissed the replacement woman on discovery
of her pregnancy. Tele-Danmark concerned a lady who was successful at
interview and was hired for the job, but later dismissed when the employer
found out she was pregnant. Interestingly, the job in this case was only
scheduled to be for a 6 month period, therefore it seems strange that the
employer would dismiss the woman, unless she was in the last stages of her
pregnancy, because she’d be able to complete most (if not all) of the work. In Melgar
the woman had worked for the company for approximately 15 years, having had her
contract renewed after each year of employment. However, on discovery of her
pregnancy, the employer refused to renew her contract and the courts said that
the employer must prove that the refusal to renew was based on some other
reason (e.g. no longer needed her or she was no longer fulfilling her duties)
other than pregnancy, otherwise he would be liable for discrimination.
The case of Hertz demonstrated that the Pregnancy
Directive will not protect women outside of their pregnancy or maternity leave.
The woman was suffering from a pregnancy-related illness which caused her to
take considerable absences from work after her maternity leave. The courts said
that the employer was within his rights to dismiss her as the illness could no
longer be related to the pregnancy and the time limit fell outside of the scope
noted in Article 10 Pregnancy Directive. In contrast to Hertz, Brown
concerned a woman who suffered from a pregnancy-related illness during her
pregnancy but before the start of her maternity leave. The employer was
discriminating against her when he dismissed her, as the courts held that she
fell within the scope of Article 10 which states that a woman cannot be
dismissed from the beginning of her pregnancy to the end of her maternity leave.
She was thus protected by the directive.
Paternity: For
many years, the issue of pregnancy only concerned women in the work place and
the rights of mothers to stay at home with their children following birth,
however the issue of fathers is now becoming increasingly pertinent. Cases such
as Hoffman (refused the state maternity benefit whilst on unpaid
paternity leave) and Commission v Italy (refused the right to paternity
leave) demonstrate that fathers were being discriminated against. The case of Roca-Alvarez
has demonstrated that fathers are gaining more and more rights, as the Spanish
authorities said that fathers were able to use part of the mother’s remaining
maternity leave, when the mother returned to work. Interestingly, this is a
topical issue in current news as the UK government have proposed to extend the
rights of new fathers, allowing mothers in the UK to transfer the remainder of
their maternity leave to their partners, allowing women the right to return to
work sooner and men the right to bond with the child, where previously UK law
had shown no interest in swapping the gender roles from woman as mother and
father as worker or bread-winner.
