EU CASE LAW

EU Case Law



EU Case Law

Question 1

According to the article 141 EC 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. 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.

Direct Discrimination

To bring a claim of direct discrimination, the complainant must show:

That they have been less favourably treated than another employee has or would have been treated; and  

that this treatment was on the grounds of sex.

The Sex Discrimination Act requires that "like must be compared with like", and that the treatment of the complainant must be compared with that afforded to someone of the opposite sex but otherwise sharing all the relevant circumstances and attributes of the complainant. The "comparator" can be hypothetical. A useful test is the "but for" test: would the complainant have been treated the same way in the course of her employment "but for" the fact that she was a woman? (Wilsher 2008 pp.3-22)

Sexual harassment can amount to discrimination although it is not defined in the Sex Discrimination Act. The European Commission has defined sexual harassment as:

"unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work"In practice, tribunals often use this definition as a starting point when considering any allegation of sexual harassment. The conduct complained of can include unwelcome physical, verbal or non-verbal conduct. An essential characteristic of the behaviour is that it is unwanted by the complainant and it is for each individual to determine what is acceptable to them and what they find offensive.

Based on the above review Angela and Heena have been directly discriminated.

Indirect Discrimination

Indirect discrimination occurs where a requirement or condition is applied equally to all relevant persons and where

the proportion of women who are able to comply with the requirement or condition is considerably smaller than the proportion of men; and

 the requirement is not justifiable irrespective of the sex of the employee; and

the employee suffers a detriment because she cannot comply with it.

The requirement or condition must have been applied universally, to both men and women (for example, a requirement that all candidates for a position are of a minimum height), whether or not the proportion of women who can comply with the requirement or condition is considerably smaller than the proportion of men will often depend upon the "pool" of people considered. The employer must satisfy the tribunal that the requirement or condition can be objectively justified. If the requirement is found to be objectively justifiable, a discrimination claim will fail.

Based on the above review , Robert is a victim of Indirect ...