EU Law: Gender Equality - the basics

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.