ABSTRACT
The new anti-discrimination agenda Prais v The Council (1976) Freedom of religion was accepted as an essential principle of EC (now EU) law and is now covered by the ‘Framework Directive’ P v S (1996) And unequal treatment of transsexuals has been held to be based on their sex and is therefore discriminatory and in breach of EU law
Equal treatment Johnston v RUC (1987) Derogation is permitted for activities where sex is a determining factor or for the protection of women Kalanke v Frei Hausestadt Bremen (1995) But positive discrimination is not allowed Webb v EMO (Air Cargo) (1992) Dismissal on grounds of pregnancy is discriminatory and a breach of Directive 2006/57 Dekker v Stichting (1990) As is refusal to employ on the same grounds Marshall v Southampton AHA (1986) As is applying unequal retirement ages
Equal pay Defrenne v SABENA (1976) Art 157 TFEU is directly effective Bilka-Kaufhaus v Karen Weber Von Harz (1986) Can only have differential pay rates if there is an ‘objective justifi cation’: • corresponds to genuine need of enterprise • suitable for obtaining objective pursued by the enterprise • necessary for that purpose Barber v Guardian Royal Assurance Group (1990) Pay is defi ned broadly in Art 157 and includes any benefi t an employee obtains by reason of the relationship with the employer Rummler v Dato-Druck GmbH (1986) For claims of equal pay for work of equal value job evaluation schemes must not apply different criteria to men and women Murphy v An Bord Telecom Eireann (1988) Only equal pay can be awarded by the court even if work shown to be of superior value
Key Facts Defrenne was employed as an air stewardess with the Belgian airline and was paid significantly less than male cabin crew. She was unable to claim equal pay under Belgian law as there was no legislation on equal pay. She tried to bring an action under Art 119 (now Art 157 TFEU) and the Belgian authorities argued that the Art only affected the state and gave no rights to individuals.
