Lecture 6 of the course European Law (2016/2017), Utrecht University

Equal treatment in Employment law

European  Law, 9 januari 2017

Equal treatment in employment

Ivo van der Helm

Outline of the lecture

Today we will be dealing with equal treatment, there is a lot of jurisprudence of the Court about this subject, and legislation, directives etc. First of all, we will discuss the evolution in the cost of time of EC-EU equal treatment law, the development of the equal treatment law. Secondly, the terms direct discrimination, harassment, indirect discrimination and positive action are important. Thirdly, we will discuss equal treatment on ground of sex and on other grounds: race, religion, belief, disability and sexual orientation. These are all forms of equal treatment.

We are not talking about equal treatment based on nationality. The Directives does not include the discrimination based on nationality. Why is that? Because there is no cross-border element in the equal treatment in employment. The Directives are intended to harmonise in certain extend. This is a social objective to avoid discrimination, the Directives are only for internal situations, there is no cross-border element. The Directive has to be implemented in national law by the Member States. So therefore there’s a difference between the discrimination prohibition for the free movement, and on the other hand the prohibition of discrimination that has to be implemented (Directives). It is important to bear in mind which discrimination grounds are involved and which Directive you should use.

Legislation  & jurisprudence on equal treatment

Equal treatment of men and women is a very old Treaty provision of the EC-Treaty (1957). Also, there is the equal pay for equal work for men and women (article 119 EEC). This is now article 157 TFEU. There may be no unfair competition between Member States, this must be prevented. This is the main reason for the legislature of this non-discrimination rule.

In the Jurisprudence of the Court, the Defrenne II Judgment , The Court States that this rule has also an economic objective, but the social objective is actually more important than the economic objective. It’s about fundamental human rights, equal treatment is a community principle. Consequently, article 157 TFEU has direct effect and direct horizontal effect. This was determined in this case. The Court decides whether the article applies. It does not have to be transposed in national law.

The Court also defines the word ‘’wage’’ in the Defrenne II Judgment: All advantages in cash and kind which are paid now or also in the future on the basis of the employment relationship. It also contains that pensions can also be a form of pay, and fall within the scope of article 157 TFEY in the origin of the scheme lies in an agreement between the employer and employees, and must be seen as part of the contract of employment (Bilka judgment). In the Bilka Judgment, part-time employees were excluded of the pension.

Finally, if exclusion of part-timers affects far greater number of women than men, it is a form of indirect discrimination unless there is an objective justification.

The early Directives on non-discrimination on ground of sex

There were adopted different Directives by the European Union. In 1975, there was the equal payment Directive. This Directive provides that sex discrimination in respect of all aspects of pay should be eliminated. The Directive contain more specific provisions, which have to be implemented in national labour law. Secondly, the Equal Treatment Directive (1976): Sex discrimination in access to employment, training, working conditions, promotion or dismissal.

Another Directive is the Social Security Directive of 1979: This requires equal treatment between women and men in statutory schemes. These are benefits payed by the Government: pensions. Sickness payment payed by the Government (public law). If it falls within the scope of private law, this will not fall under the Directive.

There is also the Occupational Social Security Directie (1986), the Self-employment Directive (1986) and finally: the Burden of Proof Directive (1997): The burden of proof is shared more fairly in cases where workers made complaints of sex discrimination against their employers.

Directive 2006/54

Now, there has been changed a lot, but these are examples of the development of the equal treatment throughout the years. There are several Directives in the reader, for example the Directive 2006/54: Equal treatment in Employment & Occupation (The Recast Directive). This Directive was adopted putting the existing provisions on equal pay, occupational schemes and the burden of proof into a single text (1,2,4 and 6 were put into this Directive). Directive 3 and 5 still exist.

In this Directive the prohibition of discrimination is discussed, also the occupational pension schemes and equal treatment as regards access to employment, vocational training and promotion and working conditions. Finally, the remedies, enforcement and burden of proof are discussed.

Article 14 Directive 2006/54 is very important: this is the prohibition of direct and indirect discrimination. There may be no discrimination as regards access to employment, vocational training and promotion and working conditions.

Difference between direct and indirect discrimination

Direct discrimination shall be taken to occur where one person is treated less favourably on grounds of sex than another person is, has been or would be treated in a comparable situation. For example: our bakery seeks female workers. Direct discrimination is forbidden, unless exceptions allowed by the directive apply. This is a closed system. The exceptions are mentioned explicitly in the Directive, only those situations may be a reason for direct discrimination.

3 exceptions: (sex is a genuine and determining occupational requirement, to perform that specific job, the objective must be legitimate and proportionate (article 14(2), the protection of women, in particular in case of pregnancy and maternity (article 2(2c) and positive action (article 3).  These exceptions are really strict.

The first exception could be for example: Only men can perform the role of James Bond. Or, only women can apply for working in a fashion show of female clothing. An example for the second exception is: Maternity leave for women is 16 weeks, for father 5 days, because of the biological condition of the woman. The third exception  is to equalize the opportunities for both sexes (Kalanke case: a company gives priority to women to apply for the job, you may not give unconditional favour to women for a specific job. This goes further than promotion of equal chances and thus exceeded the exception to the non-discrimination provision).

Important case law is the Tele Denmark case: ‘’A woman applied for a temporary job, she was pregnant. She got the job, after a certain time while she was training for the job, she told her employer she was pregnant and wanted to leave. She couldn’t perform her practice anymore. The employer dismissed her when she took pregnancy leave. Was there a case of direct discrimination? The Court said yes: She was fired because she took the pregnancy leave. Only women can get pregnant, so this was direct discrimination, which could not be justified by any of the exceptions’’.

Indirect discrimination: There is no direct discrimination, but this is where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. So, unlike the direct discrimination, indirect discrimination has no closed system, but a proportionality test. It has to be suitable and necessary.

Example from the Case law: Bilka case: ‘’part-timers employees may obtain under pensions under the scheme only if they worked full time for at least 15 years over a total period of 20 years.’’ This is no provision to discriminate women, but mostly women are affected by the rule. It could be justified, because full-time work would be more attractive (more eager to work, economic reason for the company). The Court ruled that the employer; (1) has to put forward objective economic grounds relating to the management of the undertaking, (2) has to make sure that the pay practice is necessary to reach the objectives of the enterprise, (3) and must not go beyond what is necessary to achieve the objectives pursued by the employer (proportionality).

Harassment

Also harassment is forbidden. This is when an unwanted conduct of a sexual nature occurs with the purpose or effect of violating the dignity of a person and of creating intimidating, hostile, degrading, humiliating, offensive environment. For example: Sexual intimidation, less favourable treatment because of pregnancy.

Sexual orientation falls within the scope of the other Directive, The Framework Directive. This one is only about  men and women.

Reversal burden of proof

Article 19: Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority…

A general Treaty provision prohibiting discrimination

Introduced by the Treaty of Amsterdam (1997), now article 19 TFEU. Two Directives are based on this article, namely Directive 2000/43 EC and Directive 2000/78/EC (Framework Directive: sexual orientation, harassment, disability, age, belief and religion). You have to look what kind of discrimination occurs and which Directive applies. In the Directive you can find the definition of discrimination, the scope of the Directive, the closed system of grounds to justify direct discrimination, the burden of proof etc.

In the case of age, there is no closed system of exceptions in case of direct discrimination. This a exceptional ground (article 6(1) Directive 2000/78). Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are proportionate and necessary. So, this is an exception and an open test!

There are several cases, for example the Mangold judgment. There was a legitimate aim in this case, however the means must also be proportionate and necessary. In this case, according to the fact, excluding all workers regardless of their past, goes beyond what is necessary. In this case, the national law didn’t meet the proportionality test.