Sex Discrimination Notes

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Sex Discrimination Defrenne v SABENA (No 2) - objective of SD law - 'part of the social objectives of the Community' - not just economic

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A157 TFEU: principle of equal pay for equal work - now extended to equal pay for equal value - A157 now incorporates broader principle of equal treatment - not just equal pay - access/conditions

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Two directives - 75/117 (Equal pay for equal work) and the new 2006/54 (Equal treatment)

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A157(4) : positive discrimination permitted

The meaning of "discrimination"

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When principle of 'equal pay for male and female workers for equal work or work of equal value'

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Directive 2006/54: same principle recognised and defines 'direct' / 'indirect' discrimination A2(a)/(b)

Indirect: Where a provision puts one sex at a disadvantages without objective justification: Rinner-Kuhn v FWW: German law excluded from sick pay workers doing no more than 10 hours were week - part-time workers likely to be more female than male - Jenkins v Kingsgate (Clothing Productions) - paying parttime workers less than full doesn't itself constitute discrimination - but only if different rates attributable to objectively justified factos

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Discrimination if 2 categories of workers are paid differently for work of equal value - Enderby v Frenchay

Objective Justification

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Clarified in Bilka-Kaufaus: proportionality test - objectively justified if (a) correspond to a real need of the business (b) appropriate with a view to achieving objectives pursued (c) necessary to achieve objectives

"Sex" Discrimination

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P v S and Cornwall County Council: dismissal of a transsexual for reasons of gender reassignment = SD

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However - Grant v SW Trains: Stable relationship required for employee travel benefits: discrimination based on sexual orientation did not constitute SD - Clarification now in Directive 2000/78 adopted under A19 TFEU - prohibition on discrimination based on sexual orientation

A157 TFEU: Equal Pay

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Defrenne (No 2): A157 directly effective - but prospective only: only those who had already lodged claims

Definition of "pay": broadly defined: e.g. Garland v British Rail: special travel facilities to male employees = pay Pensions: do they constitute pay?

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