Sex discrimination in the European Court of Justice

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The case law of the European Court of Justice on matters of sex discrimination considerably expanded the scope of Article 141. More recently, in applying the principle of equality, the court has shown uncharacteristic restraint. Prior to the treaty of Amsterdam, the then Article 119 of the EC Treaty provided: “Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. For the purpose of this Article, ‘pay’ means the ordinary basic minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer.” This was amended by the Amsterdam Treaty and became Article 141: “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.” It has been observed[1] that “although the wording has seemingly broadened, this reflects the jurisprudence of the ECJ [emphasis supplied] and the central principle remains the same. During the “first stage” referred to in Art.119 (1958-62), it was thought that implementation of the principle of equal pay would be by national measures. When some of the then six member states failed to do this, the Commission took no enforcement action against them. However, in Case 43/75 Defrenne v Sabena (No.2), a Belgian air hostess claimed compensation for discrimination based on the fact that she received less pay than cabin stewards doing the same work. The Court de Travail asked the Court of Justice if Art.119 could be relied upon in national courts independently of national legislation. The court held that Art.119 was directly effective and gave rise to individual rights which national courts must protect in cases of discrimination. These could be identified by the courts solely with the aid of the “equal pay/equal work” criteria contained within the Article itself. However, it was acknowledged that “the complete implementation of the aim…may in certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate measures at Community and national level.” Following representations from the UK and Irish governments, concerned that direct enforcement from the end of the first stage might prove financially catastrophic to certain undertakings, it was held, somewhat expediently, that the decision was to have prospective effect. The first UK equal pay case to be referred to the Court of Justice itself brought about a broadening in the perceived application of the Treaty principle. In Case 129/79 Maccarthys Ltd v Smith, a claim was brought on the basis that a woman was paid £10 per week less than the man who had occupied the same position four months previously. The limitations of Defrenne were recognised in that the comparison in that case had been straightforward but that there might exist situations in which a pay difference between two workers occupying the same post at different times might be explicable by factors unconnected with discrimination on the grounds of sex. Thus it was concluded that: “…the principle that men and women should receive equal pay for equal work, enshrined in Article 119 of the EEC Treaty, is not confined to situations in which men and women are contemporaneously doing equal work for the same employer.” The Court was next prepared to broaden the scope of the Article in order to protect women who comprise some 90% of the part-time work force in the EU. In Case 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd, a female part-time worker complained that she did not receive the same hourly rate of pay as her colleagues (both male and female) who were employed full-time on the same work. It was held that the fact that part-time work is paid at an hourly rate lower than pay for full-time work does not amount per se to discrimination prohibited by Article 119 provided that the hourly rates are applied to workers belonging to either category without distinction based on sex. However, where it is established that a considerably smaller percentage of women than of men perform the minimum number of weekly working hours required in order to be able to claim the full time hourly rate of pay, the inequality in pay will be contrary to Article 119 of the Treaty where, regard being had to the difficulties encountered by women in arranging to work that minimum number of hours per week, the pay policy of the undertaking cannot be explained by factors other than discrimination based on sex. The Court has also been willing to stretch the concept of pay. In Case 12/81 Garland v British Rail Engineering Ltd, employees and their families were entitled to special rail travel concessions. On retirement, the families of female former workers lost the concessions while those of their male counterparts retained them. The court ruled that such benefits constituted ’pay’ within the meaning of Article 119. This may be regarded as a somewhat bold application of the concept given that the employment had ceased and that the direct beneficiaries of this benefit had never received it pursuant to any contract of employment. Therefore, the necessary discrimination operated against the worker’s family and not against the ex-employee herself. Further decisions continued this trend. In Case 170/84 Bilka-Kaufhaus an occupational pension incorporated into contracts of employment by a collective agreement notwithstanding the fact that it had originated in German legislation was held to fall within the ambit of the Article as was a UK employer’s contracted-out occupational pension scheme in Case C-262/88 Barber v Guardian Royal Exchange Assurance Group. The Article has even been held to apply to compensation for unfair dismissal. In Case C-167/97 R v Secretary of State for Employment ex p Seymour-Smith, judicial review was sought of a 1985 Order varying the Employment Protection (Consolidation) Act 1978 which had the effect of precluding a claim by the female applicants on the basis that they had less than the two years’ continuous service required to bring a claim of unfair dismissal. It was argued that this order was indirectly discriminatory on the ground that by virtue of the length of service requirement it affected ore women than men. Although the argument eventually failed on this discrimination point, it was held by the European Court that a judicial award of compensation for unfair dismissal related directly to the remuneration which the employee would have received but for the dismissal. Accordingly, such compensation was paid to the applicant by virtue of her employment and was therefore to be regarded as pay notwithstanding the fact that such compensation was a statutory right as opposed to deriving from the contract of employment. Although specifically decided under the Equal Treatment Directive, Case C-13/94 P v S and Cornwall County Council perhaps illustrates the outer reaches of judicial creativity in the field of equal treatment on the grounds of gender. The applicant informed the employer of his intention to undergo gender reassignment which involved dressing as a woman for a period of time and then surgery to give him the physical attributes of a woman. A dismissal for transsexuality was challenged on the basis of discrimination on the grounds of sex. It was held that the Equal Treatment Directive applied “since such discrimination is based essentially, if not conclusively, on the sex of the person concerned”. Perhaps not surprisingly, it has been observed[2] that this decision “has rightly been described as ‘dramatic’, ‘remarkable’ and ‘courageous’! More recently, however, the early simplicity of the application of the Article and the ideological zeal with which the Court appeared determined extend its scope appear to have become diluted. For example, in Case C-309/97 Angestelltenbetriebstrat der Wiener Gebietskrankenkasse, the issue concerned the performance of psychotherapy by doctors and graduate psychologists (the latter being predominantly women). The question before the court was whether the different qualifications of the two groups meant that they were not engaged in equal work. Rather than rely upon the difference in qualifications in allowing the pay difference to be justified on grounds other than sex, the Court ruled that it could not be said that the same work was being carried out even though it involved the same activities over a considerable length of time since the qualification base of those undertaking the work was different. A similarly craven evasion of the issue was apparent in Case C-249/97 Gruber v Silhouette International in which an Austrian woman terminated her employment because she could not arrange appropriate child care. Austrian law provided for a termination payment but this was not available where the employee had terminated the employment unless it was for “important reasons”. The Court was therefore called upon to decide whether maternity should fall within the category of such reasons. It was held that it did not since the definition of such reasons in the relevant legislation made it clear that they were to be reasons which rendered continued service impossible as distinct from the exercise of personal preference. In finding that the applicant had not been indirectly discriminated against, the Court refused to recognise that maternity should be held equivalent to “important reasons” rather than regarded as the exercise of preference. Such a conclusion is offensive to accepted notions of justice and, given the Court’s pedigree of preparedness to find indirect discrimination, especially surprising in the case of a women whose treatment was directly related to her responsibility for children. In Case C-411/96 Boyle v Equal Opportunities Commission, it was alleged that a rule which required a woman to refund to her employer the difference between contractual maternity pay and the statutory minimum to which she was entitled in the event of her not returning to work after the birth was contrary to Article 141 because the same rule did not apply to employees who received contractual sick pay above the statutory minimum level. It was held that although maternity pay clearly fell within the scope of the Article, there was no discrimination as a result of the application of different rules to comparable situations because the situations of pregnant women and those on maternity leave could not be compared to that of a man or woman on sick leave. In the light of the earlier willingness of the Court to make comparisons based upon substance rather than form, it is difficult to understand why there was such readiness to distinguish between two apparently comparable groups on the basis that the absence was due to pregnancy in one situation and illness in another. A further example of the recently more restrictive approach to the Court in the application of Article 141 is to be found in the first decision on the Parental Leave Directive 96/34: Case C-333/97 Lewen v Denda. The complaint concerned failure to pay a Christmas bonus while the claimant was on parental leave. Plainly the bonus was pay within the terms of the Article. There was no question of direct discrimination since it would not have been paid to either a man or a woman while on parental leave. However, it was argued that the action was indirectly discriminatory since the Court found as fact that women take parental leave “far more often” than men. Nonetheless, it was held that because discrimination arises when different rules are applied to comparable situations or the same rule is applied to different situations, the payment of the bonus only to those in active employment was not discriminatory because a worker who exercises the statutory right to take parental leave which carries with it an allowance paid by the state is in a special situation which cannot be compared to that of the man or woman in work since “such leave involves suspension of the contract f employment and therefore of the respective obligations of the employer and the worker.” While such reasoning is superficially attractive, it is disappointing when one considers the outcome of Jenkins (supra) in which the Court was prepared to have regard to the fact that although logically a comparison should not be made between full-time and part-time workers, the reality of the situation was that in such a situation women were disproportionately affected and that a finding of indirect discrimination was therefore justified. This deterioration in the robustness of the Court has been well marked by commentators. Ellis[3] has remarked: “With only a very few exceptions, the Court’s judgments today are failing to send out the formerly clear message that sex discrimination is unlawful, that it will be recognised and outlawed even where its operation is subtle, and that few exceptions will be allowed to stand in the way of the effectiveness of the non-discrimination principle.” She argues that this “loss of direction” might be a symptom of the well-known overload currently being experienced by the Court. It may also be of significance that the majority of what are regarded as forward-looking and progressive decisions have been those of the Chambers rather than the Full Court which might be becoming too large for effective decision-making. The decline in the radicalism of the Court is of particular concern given recent developments within the Union. The Amsterdam Treaty of 1997 added two new provisions to the Article 141 equality principle. First, the Council is required to adopt measures to ensure equal opportunity and equal treatment of men and women in employment. Second, it overtly encourages positive action: “With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.” Further, the much maligned proposed European Constitution not only specifically provides by Article II-83 that “equality between men and women must be ensured in all areas, including work and pay” (and once again preserves the exemption in favour of positive action) but also requires by Article II-81 that not only should there be no discrimination on the grounds of sex but also that such protection should extend to: “…race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation…” In respect of sex discrimination, Defeis[4] concludes that “Member States will likely continue to need prodding from the ECJ and the Commission to fully implement the new provisions of the Amsterdam Treaty.” From the trend in recent decisions of the Court in sex discrimination cases it may be concluded that much of the apparent early reforming zeal has been dissipated. The Union is now greatly enlarged and the anti-discrimination provisions of the proposed Constitution are far more wide-reaching, difficult to define and potentially controversial than the by now well-established gender equality issues. If there is to be any hope of effective enforcement of broader obligations in a Union greatly expanded in size and diversity, it is time for the European Court of Justice to rediscover its teeth. Bibliography Arnull, A., Dashwood, A., Ross, M., Wyatt, D., Wyatt and Dashwood’s European Union Law, (4th Ed., 2003) Craig, P. & De Burca, G., EU Law, Text, Cases and Materials, (3rd Ed., 2003) Defeis, E., The Treaty of Amsterdam: The Next Step Towards Gender Equality?, www.bc.edu Ellis, J., The Recent Jurisprudence of the Court of Justice in the Field of Sex Equality, (2000) CMLR 37, 1403-1426 Fenwick, H. & Hervey, T., Sex Equality in the Single Market: New Directions for the European Court of Justice, (1995) CMLR 32, 443-470 Fredman, S., Reversing Discrimination, (1997) 113 LQR 575 Steiner, J. & Woods, L., Textbook on EC Law, (8th Ed., 2003) Tillotson, J. & Foster, N., Text, Cases and Materials on European Union Law, (4th Ed., 2003) Treaty establishing a Constitution for Europe, Council of Ministers document CIG 87/1/04 REV 1 of 13 Oct 2004 www.europa.eu.int 1

Footnotes

[1] Steiner, J. & Woods, L., Textbook on EC Law, (8th Ed., 2003), p.495 [2] Tillotson, J. & Foster, N., Text, Cases and Materials on European Union Law, (4th Ed., 2003), p.395 [3] Ellis, J., The Recent Jurisprudence of the Court of Justice in the Field of Sex Equality, (2000) CMLR 37, 1403 at p.1426 [4] Defeis, E., The Treaty of Amsterdam: The Next Step Towards Gender Equality?, www.bc.edu
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