Social Policy: Sex Discrimination
The reasons EU pursues a social policy -> Defrenne v SABENA (1976): ECJ outlined the double aim of Art. 157 TFEU:
1. Social dumping: Avoid situations where MS who actually implemented the principle of equal pay suffer a competitive
disadvantage in intra-Community competition
2. Social progress: Forms part of the social objectives of the Community, which is not merely an economic union, but also
seeks to ensure social progress and seeks constant improvement of the living and working conditions of its people
*Principle of equality has been embodied in UK legislation - Equality Act 2010.
1) Is the case a ‘equal pay’ or ‘equal treatment’ issue?
First need to distinguish if case is pay or treatment related
to determine which EU legislation a claimant can rely on.
Pay is defined as ‘salary and any other consideration, Treatment includes training, dismissal, working conditions,
whether in cash or in kind’ (Art. 157(2) TFEU) membership in organisation and related benefits (Art. 14(1)
Recast Directive 2006/54 - only vertical direct effect: Faccini
Barber defines pay if: (1) a worker receives it, (2) in Dori, therefore must rely on indirect effect or state liability)
respect of, his employment, (3) from his employer.
Equal treatment is granted under Art. 14 Recast Directive
Garland v British Rail: the definition of pay is widely 2006/54, Pregnancy Directive 92/85, Equality Act 2010 (only
interpreted vertical direct effect: Foster test).
Examples:
• Allowances (e.g. clothing) or discounts E.g. Marshal v Southampton & SW AHA: discriminatory
• Travel concessions to ex-employees, including when retirement ages constitutes unequal treatment (this case also
given ‘gratuitously’ and to families (Garland v British Rail) established for the first time that directives could not have
• Unfair dismissal compensation (ex p Seymour Smith) horizontal DE)
• Statutory redundancy pay (Barber)
• Holiday allowance *Pregnancy Directive usually used when there is an unfair
• Contractual pension contributions (Bilka-Kaufhaus) dismissal, but courts have also upheld it for job applications.
• Does not include: statutory pension contributions or (Webb was to rely on Pregnancy Directive because was hired
retirement age (Defrenne v SABENA) when pregnant, whilst Decker was not pregnant at the time
and had to rely on the recast directive.)
Equal Pay is granted under Art. 157 TFEU, Recast
Directive, Equality Act 2010: each MS shall ensure that the Other relevant directives:
principle of equal pay for male and female workers for • Framework Directive 2000/78 - religion, beliefs, disability,
equal work or work of equal value is applied (Art. 157(1)) age, sexual orientation (Mangold case - age discrimination)
= horizontal and vertical direct effect (Defrenne v SABENA) • Race Directive 2000/43 - racial or ethic origin
2) Is the issue of ‘direct’ or ‘indirect’ discrimination?
Direct discrimination: is where one person is Indirect discrimination: where an apparently neutral
treated less favourably on grounds of sex (Art. 2(1) provision, unrelated to sex, puts a particular disadvantage
(a) Recast Directive) -> employer needs to outrightly on one sex compared to another, with no objectively justified
discriminate an entire gender for it to be direct. legitimate aim and means of reaching the aim are
appropriate and necessary (Art. 2(1)(b) Recast Directive)
Defrenne v SABENA: Sabena, a Belgium airline, paid
men cabin crew more than women for the same work. Jenkins v Kingsgate: difference in pay of full-time (mainly men)
This was allowed under Belgium national law, but was and part-time (mainly women) pro-rata pay by 9.5 pence
prohibited by Art. 119 (now 157)
Rinner-Kuhn: part-time workers (mainly women) not given sick
*ECJ states that any form of adverse treatment pay due to German legislation requiring a minimum of 10 hours
towards a pregnant women by an employer due to her per week.
pregnancy = direct discrimination (Recast Directive/
Pregnancy Directive) E.g.: Bilka-Kaufhaus: Part-time workers (mainly women) excluded
• Dekker: not employing a women due to her from pension schemes.
pregnancy
• Webb v EMO Cargo: dismissal due to pregnancy Kalliri: height requirements for Police Academies
The reasons EU pursues a social policy -> Defrenne v SABENA (1976): ECJ outlined the double aim of Art. 157 TFEU:
1. Social dumping: Avoid situations where MS who actually implemented the principle of equal pay suffer a competitive
disadvantage in intra-Community competition
2. Social progress: Forms part of the social objectives of the Community, which is not merely an economic union, but also
seeks to ensure social progress and seeks constant improvement of the living and working conditions of its people
*Principle of equality has been embodied in UK legislation - Equality Act 2010.
1) Is the case a ‘equal pay’ or ‘equal treatment’ issue?
First need to distinguish if case is pay or treatment related
to determine which EU legislation a claimant can rely on.
Pay is defined as ‘salary and any other consideration, Treatment includes training, dismissal, working conditions,
whether in cash or in kind’ (Art. 157(2) TFEU) membership in organisation and related benefits (Art. 14(1)
Recast Directive 2006/54 - only vertical direct effect: Faccini
Barber defines pay if: (1) a worker receives it, (2) in Dori, therefore must rely on indirect effect or state liability)
respect of, his employment, (3) from his employer.
Equal treatment is granted under Art. 14 Recast Directive
Garland v British Rail: the definition of pay is widely 2006/54, Pregnancy Directive 92/85, Equality Act 2010 (only
interpreted vertical direct effect: Foster test).
Examples:
• Allowances (e.g. clothing) or discounts E.g. Marshal v Southampton & SW AHA: discriminatory
• Travel concessions to ex-employees, including when retirement ages constitutes unequal treatment (this case also
given ‘gratuitously’ and to families (Garland v British Rail) established for the first time that directives could not have
• Unfair dismissal compensation (ex p Seymour Smith) horizontal DE)
• Statutory redundancy pay (Barber)
• Holiday allowance *Pregnancy Directive usually used when there is an unfair
• Contractual pension contributions (Bilka-Kaufhaus) dismissal, but courts have also upheld it for job applications.
• Does not include: statutory pension contributions or (Webb was to rely on Pregnancy Directive because was hired
retirement age (Defrenne v SABENA) when pregnant, whilst Decker was not pregnant at the time
and had to rely on the recast directive.)
Equal Pay is granted under Art. 157 TFEU, Recast
Directive, Equality Act 2010: each MS shall ensure that the Other relevant directives:
principle of equal pay for male and female workers for • Framework Directive 2000/78 - religion, beliefs, disability,
equal work or work of equal value is applied (Art. 157(1)) age, sexual orientation (Mangold case - age discrimination)
= horizontal and vertical direct effect (Defrenne v SABENA) • Race Directive 2000/43 - racial or ethic origin
2) Is the issue of ‘direct’ or ‘indirect’ discrimination?
Direct discrimination: is where one person is Indirect discrimination: where an apparently neutral
treated less favourably on grounds of sex (Art. 2(1) provision, unrelated to sex, puts a particular disadvantage
(a) Recast Directive) -> employer needs to outrightly on one sex compared to another, with no objectively justified
discriminate an entire gender for it to be direct. legitimate aim and means of reaching the aim are
appropriate and necessary (Art. 2(1)(b) Recast Directive)
Defrenne v SABENA: Sabena, a Belgium airline, paid
men cabin crew more than women for the same work. Jenkins v Kingsgate: difference in pay of full-time (mainly men)
This was allowed under Belgium national law, but was and part-time (mainly women) pro-rata pay by 9.5 pence
prohibited by Art. 119 (now 157)
Rinner-Kuhn: part-time workers (mainly women) not given sick
*ECJ states that any form of adverse treatment pay due to German legislation requiring a minimum of 10 hours
towards a pregnant women by an employer due to her per week.
pregnancy = direct discrimination (Recast Directive/
Pregnancy Directive) E.g.: Bilka-Kaufhaus: Part-time workers (mainly women) excluded
• Dekker: not employing a women due to her from pension schemes.
pregnancy
• Webb v EMO Cargo: dismissal due to pregnancy Kalliri: height requirements for Police Academies
