Sex and race discrimination: EC sex discrimination law
This section of the Discrimination Guide looks at remedies for sex discrimination under EC and UK law.
Remedies under EC law
Direct enforcement
Time limits
Agreement
precluding complaint
Grounds of sex
Pregnancy
Sexual orientation
Transsexualism
Exclusions
Sex as determining factor
Pregnancy
Positive
action
Access to jobs
Pregnancy
discrimination
Access to training
Working conditions and dismissal
Discriminatory retirement ages
Pensions
Pregnancy
Transsexuals
Indirect
discrimination under EC law
Qualifying thresholds
Sanctions
EC law and UK law
General
principles
Specific examples
Remedies under EC law
In order to carry out their task the Council and the Commission shall in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
A decision shall be binding in its entirety upon those to whom it is addressed.
Recommendations and opinions
shall have no binding force.
EC Treaty - Article 189
Member States shall
introduce into their national legal systems such measures as are necessary to
enable all persons who consider themselves wronged by failure to apply to them
the principle of equal treatment within the meaning of Articles 3, 4 and 5 to
pursue their claims by judicial process after possible recourse to other
competent authorities.
Equal Treatment Directive - Article
6
Direct enforcement
Marshall v Southampton and
South-West Hampshire Area Health Authority [1986] IRLR 140 ECJ
A Directive may not of itself impose obligations on an
individual, as opposed to a State authority, and a provision of a Directive may
not be relied upon as against an individual. According to Article 189 of the EC
Treaty, the binding nature of a Directive, which constitutes the basis for the
possibility of relying on the Directive before a national court, exists only in
relation to "each Member State to which it is addressed". Whether a respondent
must be regarded as having acted as an individual is for the national court to
determine according to the circumstances of each case.
Marshall v Southampton and
South-West Hampshire Area Health Authority [1986] IRLR 140 ECJ
Wherever the provisions of an EC Directive appear, as far
as their subject-matter is concerned, to be unconditional and sufficiently
precise, those provisions may be relied upon by an individual against the State
where that State fails to implement the Directive in national law by the end of
the period prescribed, or where it fails to implement the Directive correctly.
Verholen v Sociale
Verzekeringsbank Amsterdam [1992] IRLR 38 ECJ
Community law does not preclude a national court from
examining of its own motion whether national legal rules comply with the precise
and unconditional provisions of a Directive, the period for whose implementation
has elapsed.
Marshall v Southampton and
South-West Hampshire Area Health Authority [1986] IRLR 140 ECJ
Where a person involved in legal proceedings is able to
rely on a Directive as against the State, he may do so regardless of the
capacity in which the latter is acting, whether employer or public authority.
Foster v British Gas plc
[1990] IRLR 354 ECJ
Unconditional and
sufficiently precise provisions of a Directive can be relied on against an
organisation, whatever its legal form, which is subject to the authority or
control of the State or which has been made responsible, pursuant to a measure
adopted by the State, for providing a public service under the control of the
State and has for that purpose special powers beyond those which result from the
normal rules applicable in relations between individuals.
Foster v British Gas plc
[1991] IRLR 268 HL
The sole questions under the
test laid down by the European Court are whether the employer, pursuant to a
measure adopted by the State, provides a public service under the control of the
State and exercises special powers. That the employer engages in commercial
activities, does not perform any of the traditional functions of the State and
is not the agent of the State is not relevant to this test.
Foster v British Gas plc
[1991] IRLR 268 HL
The principle laid down by
the European Court of Justice was that the State must not be allowed to take
advantage of its own failure to comply with Community law. There is no
justification for a narrow or strained construction of the ruling of the
European Court, which was couched in terms of broad principle and purposive
language.
Foster v British Gas plc
[1991] IRLR 268 HL
The British Gas Corporation,
prior to its privatisation, was a body whose employees were entitled to rely
directly upon the requirements of Article 5(1) of the EC Equal Treatment
Directive.
Doughty v Rolls-Royce plc
[1992] IRLR 126 CA
The three criteria
formulated by the European Court in Foster for determining whether a particular
entity is such that the provisions of a Directive are directly enforceable
against it are cumulative requirements rather than alternative. The power of
control is only one of the cumulative criteria.
Doughty v Rolls-Royce plc
[1992] IRLR 126 CA
Rolls-Royce, prior to its
privatisation, was not a body whose employees were entitled to rely directly
upon the requirements of Article 5(1) of the EC Equal Treatment Directive,
notwithstanding that the State was the sole shareholder in the company at the
relevant time. It was a commercial undertaking which could not be said to have
been "made responsible, pursuant to a measure adopted by the State for providing
a public service". Nor was there any evidence that Rolls-Royce claimed to
exercise any "special powers" of the type enjoyed by the British Gas
Corporation.
Cotter v Minister for Social
Welfare [1991] IRLR 380 ECJ
In the absence of measures
implementing a directly enforceable provision of an EC Directive, women are
entitled to have the same rules applied to them as are applied to men who are in
the same situation since, where the Directive has not been implemented, those
rules remain the only valid point of reference. This principle applies even if
it infringes a prohibition on unjust enrichment laid down by national law.
Jesuthasan v London Borough
of Hammersmith & Fulham [1998] IRLR 372 CA
Legislative measures which have been declared incompatible
with EC law on account of their indirectly discriminatory effects must be
disapplied in respect of all employees, regardless of sex. Therefore, even
though the applicant is a man, he was entitled to rely on the decision of the
House of Lords in R v Secretary of State for Employment ex parte EOC that the
hours per week qualifying thresholds to claim unfair dismissal were incompatible
with EC law because they indirectly discriminated against women.
Secretary of State for
Scotland v Wright [1991] IRLR 187 EAT
An employment
tribunal has jurisdiction to hear a claim brought under directly applicable
provisions of the Equal Treatment Directive in circumstances where the applicant
has no remedy under domestic legislation. Accordingly, the tribunal had
jurisdiction to hear the employees' complaint that their exclusion from the
right to a contractual redundancy payment contravened Article 5(1) of the Equal
Treatment Directive.
Blaik v Post Office [1994]
IRLR 280 EAT
If there is a sufficient
remedy given by domestic law, it is unnecessary and impermissible to explore the
same complaint under the equivalent provisions in a Directive. It is only if
there is a disparity between the two that it becomes necessary to consider
whether the provisions in EC law are directly enforceable by the complainant in
his proceedings against the respondent.
Time limits
Emmott v Minister for Social
Welfare [1991] IRLR 387 ECJ
In the absence of Community
rules on the subject, it is for the domestic legal system of each Member State
to determine the procedural conditions governing actions at law intended to
ensure the protection of rights which individuals derive from the direct effect
of Community law, provided that such conditions are not less favourable than
those relating to similar actions of a domestic nature, nor framed so as to
render virtually impossible the exercise of rights conferred by Community law.
The laying down of reasonable time limits, which if unobserved bar proceedings,
in principle satisfies these two conditions.
Emmott v Minister for Social
Welfare [1991] IRLR 387 ECJ
Until such time as a
Directive has been properly transposed into domestic law, a defaulting Member
State may not rely on an individual's delay in initiating proceedings against it
in order to protect rights conferred upon him by the provisions of the
Directive, and a period laid down by national law within which proceedings must
be initiated cannot begin to run before that time.
Steenhorst-Neerings v
Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen
[1994] IRLR 244 ECJ
A national rule of law
restricting the retroactive effect of claims is not precluded by EC law where an
individual seeks to rely on rights conferred directly by an EC Directive and
where on the date the claim for benefit was made the Member State concerned had
not yet properly transposed that provision into national law. The principle set
out by Emmott, that the time limits for proceedings brought by individuals
seeking to avail themselves of their rights are applicable only when a Member
State has properly transposed the Directive, did not apply in such a case. The
right to claim benefits conferred upon women by the direct effect of a Directive
must be exercised under the conditions determined by national law, provided
those conditions are no less favourable than those relating to similar domestic
actions and that they are not framed so as to render virtually impossible the
exercise of rights conferred by Community law.
Johnson v Chief Adjudication
Officer (No.2) [1995] IRLR 157 ECJ
It is compatible
with European Community law to apply a national rule, which limits the period in
respect of which arrears of benefit are payable, to a claim based on the direct
effect of an EC Directive, even where that Directive has not been properly
transposed within the prescribed period in the Member State. The solution
adopted in Emmott was justified by the particular circumstances of that case, in
which a time bar had the result of depriving the applicant of any opportunity
whatever to rely on her right to equal treatment under the Directive. This was
to be contrasted with application of a rule which merely limited the retroactive
effect of claims for benefits to one year, and therefore did not make it
virtually impossible to exercise rights based on the Directive.
Setiya v East Yorkshire
Health Authority [1995] IRLR 348 EAT
The principle
laid down in Emmott relates only to time limits for initiating proceedings, and
has no application to national time limits for appealing against a decision.
Agreement precluding complaint
Livingstone v Hepworth
Refractories plc [1992] IRLR 63 EAT
The procedural
provisions of UK domestic law comply with the conditions indicated by the
European Court in Emmott. Therefore, the proper approach is to apply the
procedures of the Sex Discrimination Act, including that relating to time limits
and the code intended to protect employees against bad bargains, to claims of
sex discrimination brought directly under Community law.
Grounds of sex
(1) For the purposes of the
following provisions, the principle of equal treatment shall mean that there
shall be no discrimination whatsoever on grounds of sex either directly or
indirectly by reference in particular to marital or family status.
Equal Treatment Directive - Article
2
P v S [1996] IRLR 347 ECJ
The scope of the Equal Treatment Directive cannot be
confined simply to discrimination based on the fact that a person is one or
other sex. In view of its purpose and the fundamental nature of the rights which
it seeks to safeguard, the scope of the Directive also applies to discrimination
based essentially, if not exclusively, on the sex of the person concerned.
Pregnancy
Dekker v VJV-Centrum [1991] IRLR 27 ECJ
Whether a refusal to employ results in direct
discrimination on grounds of sex depends on whether the most important reason is
one which applies without distinction to employees of both sexes or whether it
exclusively applies to one sex. As employment can only be refused because of
pregnancy to women, such a refusal is direct discrimination on grounds of sex.
Therefore, an employer is acting in direct contravention of the principle of
equal treatment embodied in the EC Equal Treatment Directive if he refuses to
enter into a contract of employment with a female applicant, found suitable by
him for the post in question, because of the possible adverse consequences to
him of employing a pregnant woman.
Handels- og
Kontorfunktionærernes Forbund i Danmark (acting for Hertz) v Dansk
Arbejdsgiverforening (acting for Aldi Marked K/S) [1991] IRLR 31 ECJ
The dismissal of a female worker because of her pregnancy
constitutes direct discrimination on grounds of sex, in the same way as does the
refusal to recruit a pregnant woman. Therefore, a woman is protected from
dismissal because of her absence during the maternity leave from which she
benefits under national law.
Webb v EMO Air Cargo (UK)
Ltd [1994] IRLR 482 ECJ
Dismissal of a woman on
grounds of pregnancy constitutes direct discrimination on grounds of sex. In
determining whether there is discrimination on grounds of sex contrary to the
Directive, the situation of a woman who finds herself incapable by reason of
pregnancy of performing the task for which she was recruited cannot be compared
with that of a man similarly incapable for medical or other reasons.
Sexual orientation
Grant v South-West Trains
Ltd [1998] IRLR 206 ECJ
Discrimination based on
sexual orientation does not constitute discrimination based on the sex of the
worker within the meaning of Article 141. European Community law does not cover
discrimination based on sexual orientation. Therefore, a refusal by an employer
to allow travel concessions to a person of the same sex with whom a worker has a
stable relationship is not contrary to EU law, even if such concessions are
allowed to a person of the opposite sex with whom a worker has a stable
relationship.
R v Secretary of State for
Defence ex parte Perkins (No.2) [1998] IRLR 508 HC
Although the decision in Grant that Community law does not
cover or render unlawful discrimination based on sexual orientation was a
decision on the meaning of the word "sex" in the Equal Pay Directive, it must
reasonably be inferred that the same word has the same meaning in the Equal
Treatment Directive.
P v S [1996] IRLR 347 ECJ
Where such discrimination arises from the gender
reassignment of the person concerned, he or she is treated unfavourably by
comparison with persons of the sex to which he or she was deemed to belong
before undergoing gender reassignment.
Exclusions
Perceval-Price v Department
of Economic Development [2000] IRLR 380 NICA
The term "worker" in the context of Community law must be
interpreted broadly and in a purposive fashion so as to include within the
definition all persons who are engaged in a relationship which is broadly that
of employment rather than being self-employed or independent
contractors.
Perceval-Price v Department
of Economic Development [2000] IRLR 380 NICA
Tribunal chairmen are "workers" who are in "employment"
within the meaning of European Community law, and are therefore entitled to
bring equal pay and sex discrimination complaints, notwithstanding that they do
not fall within the definition of "employment" under domestic equal pay and sex
discrimination legislation because they are holders of statutory
office.
Sex as determining factor
(2) This Directive shall be
without prejudice to the right of Member States to exclude from its field of
application those occupational activities and, where appropriate, the training
leading thereto, for which, by reason of their nature or the context in which
they are carried out, the sex of the worker constitutes a determining factor.
Equal Treatment Directive - Article
2
Johnston v The Chief
Constable of the Royal Ulster Constabulary [1986] IRLR 263 ECJ
Article 2(2) of the Equal Treatment Directive, being a
derogation from an individual right laid down in the Directive, must be
interpreted strictly, and in determining the scope of any derogation, the
principle of proportionality must be observed. That principle requires that
derogations remain within the limits of what is appropriate and necessary for
achieving the aim in view and requires the principle of equal treatment to be
reconciled as far as possible with the requirement which constituted the
decisive factor as regards the context of the activity in question. It is for
the national court to ensure that the principle of proportionality is
observed.
Sirdar v The Army Board
[2000] IRLR 47 ECJ
There is no general
exception in the EC Treaty covering all measures taken by Member States for
reasons of public security. Therefore, application of the principle of equal
treatment is not subject to any general reservation as regards measures for the
organisation of the armed forces. However, the UK Government might be entitled
under Article 2(2) of the Equal Treatment Directive to exclude women from
service in special combat units such as the Royal Marines.
Commission of the European
Communities v United Kingdom of Great Britain and Northern Ireland [1984] IRLR
29 ECJ
Reconciliation of the
principle of equality of treatment with the principle of respect for private
life is one of the factors which must be taken into consideration in determining
the scope of the exception provided for in Article 2(2) of the Equal Treatment
Directive.
Pregnancy
(3) This Directive shall be
without prejudice to provisions concerning the protection of women, particularly
as regards pregnancy and maternity.
Equal Treatment Directive - Article 2
Johnston v The Chief
Constable of the Royal Ulster Constabulary [1986] IRLR 263 ECJ
The differences in treatment between men and women that
Article 2(3) of the Equal Treatment Directive allows out of a concern to protect
women, do not include risks and dangers that do not specifically affect women as
such. Article 2(3) must be interpreted strictly. It is clear from the express
reference to pregnancy and maternity that the Directive is intended to protect a
woman's biological condition and the special relationship which exists between a
woman and her child. That provision of the Directive does not therefore allow
women to be excluded from a certain type of employment on the ground that public
opinion demands that women be given greater protection than men against risks
which affect men and women in the same way and which are distinct from women's
specific needs of protection, such as those expressly mentioned in Article
2(3).
Positive action
(4) 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.
EC Treaty - Article 141
4. This Directive shall be
without prejudice to measures to pro-mote equal opportunity for men and women,
in particular by removing existing inequalities which affect women's
opportunities in the areas referred to in Article 1(1).
EQUAL TREATMENT DIRECTIVE - Article
2
Kalanke v Freie Hansestadt
Bremen [1995] IRLR 660 ECJ
National rules which
guarantee women absolute and unconditional priority for appointment or promotion
go beyond promoting equal opportunities and overstep the limits of the exception
to the principle of equal treatment in Article 2(4) of the Equal Treatment
Directive. As a derogation from an individual right laid down in the Directive,
Article 2(4) must be interpreted strictly. It permits national measures relating
to access to employment, including promotion, which give a specific advantage to
women with a view to improving their ability to compete on the labour market and
to pursue a career on an equal footing with men.
EFTA Surveillance Authority
v Kingdom of Norway [2003] IRLR 318 EFTA Ct
The Equal Treatment Directive is based on the recognition
of the right to equal treatment as a fundamental right of the individual.
National rules and practices derogating from that right can only be permissible
when they show sufficient flexibility to allow a balance between the need for
the promotion of the under-represented gender and the opportunity for candidates
of the opposite gender to have their situation objectively assessed. There must,
as a matter of principle, be a possibility that the best-qualified candidate
obtains the post. Therefore, national legislation which allows a number of
academic posts to be reserved exclusively for women because they are
underrepresented in the particular post went beyond the scope of Article 2(4) of
the Directive insofar as it gave absolute and unconditional priority to female
candidates.
Marschall v Land
Nordrhein-Westfalen [1998] IRLR 39 ECJ
It is not
contrary to the Equal Treatment Directive for equal-ly-qualified women to be
given preference for promotion where there are fewer women than men in the
relevant post, so long as male candidates are guaranteed that women are not to
be given priority if reasons specific to an individual equally-qualified man
tilt the balance in his favour.
Application by Badek [2000]
IRLR 432 ECJ
A measure which is intended
to give priority in promotion to women in sectors of the public service where
they are underrepresented is compatible with Community law if it does not
automatically and unconditionally give priority to women when women and men are
equally qualified, and the candidatures are the subject of an objective
assessment which takes account of the specific personal situations of all
candidates.
Application by Badek [2000]
IRLR 432 ECJ
The Equal Treatment
Directive does not preclude a rule for the public service which allocates at
least half the training places to women in occupations in which women are
underrepresented and for which the State does not have a monopoly of training.
Nor does it preclude a rule for the public service which guarantees, in sectors
in which women are underrepresented, that where male and female candidates have
equal qualifications, either all women who are qualified will be given an
interview, or that no more male candidates than female candidates will be
interviewed.
Abrahamsson v Fogelqvist
[2000] IRLR 732 ECJ
The Equal Treatment
Directive precludes national legislation which provides for positive
discrimination in recruitment in favour of candidates of the under-represented
sex by automatically granting preference to candidates belonging to the
underrepresented sex, so long as they are sufficiently qualified, subject only
to the proviso that the difference between the merits of the candidates of each
sex is not so great as to result in a breach of the requirement of objectivity
in making appointments. Such legislation was ultimately based on the mere fact
of belonging to the under-represented sex.
Abrahamsson v Fogelqvist
[2000] IRLR 732 ECJ
Although Article 141(4)
allows the Member States to maintain or adopt measures providing for special
advantages intended to prevent or compensate for disadvantages in professional
careers in order to ensure full equality between men and women in professional
life, it cannot be inferred that it allows a selection method which is
disproportionate to the aim pursued.
Abrahamsson v Fogelqvist
[2000] IRLR 732 ECJ
The Equal Treatment
Directive does not preclude a rule of national case law under which a candidate
belonging to the underrepresented sex may be granted preference over a
competitor of the opposite sex, provided that the candidates possess equivalent
or substantially equivalent merits and the candidatures are subjected to an
objective assessment which takes account of the specific personal situations of
all the candidates.
Lommers v Minister van
Landbouw, Natuurbeheer en Visserij [2002] IRLR 430 ECJ
Provision of a limited number of subsidised nursery places
to female staff only is permissible in principle under Article 2(4) of the Equal
Treatment Directive, where the scheme has been set up by the employer to tackle
extensive under-representation of women, in a context characterised by a proven
insufficiency of proper, affordable child-care facilities, so long as male
employees who take care of their children by themselves are allowed to have
access to the scheme on the same conditions as female employees. The fact that
the policy did not guarantee access to nursery places to employees of both sexes
on an equal footing was not contrary to the principle of
proportionality.
Access to jobs
(1) Application of the
principle of equal treatment means that there shall be no discrimination
whatsoever on grounds of sex in the conditions, including selection criteria,
for access to all jobs or posts, whatever the sector or branch of activity, and
to all levels of the occupational hierarchy.
Equal Treatment Directive - Article 3
Johnston v The Chief
Constable of the Royal Ulster Constabulary [1986] IRLR 263 ECJ
The application of the principle of equal treatment to the
conditions governing access to jobs, as set out in Article 3(1) of the Equal
Treatment Directive, is unconditional and sufficiently precise so that it may be
relied upon by individuals as against a Member State where that Member State
fails to implement it correctly.
Gerster v Freistaat Bayern
[1997] IRLR 699 ECJ
Legislation which treats
part-time employees less favourably than full-time employees by providing for
them to accrue length of service more slowly, and perforce gain promotion later,
results in discrimination against women as compared with men and must in
principle be regarded as contrary to the Equal Treatment Directive, unless the
distinction is justified by objective reasons unrelated to any discrimination on
grounds of sex. There would be no infringement of the Equal Treatment Directive
if the national court found that part-time employees are generally slower than
full-time employees in acquiring job-related abilities and skills, and that the
competent authorities were in a position to establish that the measures chosen
reflected a legitimate social policy aim, were an appropriate means of achieving
that aim and were necessary in order to do so. However, a requirement that
part-time employees must complete a longer period of service than a full-time
employee in order to have approximately the same chance of promotion must be
regarded as contrary to the Equal Treatment Directive if the national court
concludes that there is no special link between length of service and
acquisition of a certain level of knowledge or experience.
Kording v Senator Für
Finanzen [1997] IRLR 710 ECJ
Legislation which treats a
part-time employee less favourably than a full-time employee, by providing that
the total length of professional experience required for exemption from a
qualifying examination is to be extended on a pro-rata basis for part-time
workers, gives rise to indirect discrimination against women if substantially
fewer men than women work part-time and must in principle be regarded as
contrary to the Equal Treatment Directive. However, such inequality of treatment
would be compatible with the Directive if it were justified by objective factors
unrelated to any discrimination on grounds of sex.
Meyers v Adjudication
Officer [1995] IRLR 498 ECJ
A benefit such as family
credit in the UK falls within the scope of Article 3 of the Equal Treatment
Directive, since its subject-matter is access to employment in that the benefit
is intended to keep poorly-paid workers in employment. The fact that a scheme of
benefits is part of a national social security system cannot exclude it from the
scope of the Directive.
Pregnancy discrimination
Dekker v VJV-Centrum [1991]
IRLR 27 ECJ
A refusal to employ because
of the financial consequences of absence connected with pregnancy must be deemed
to be based principally on the fact of the pregnancy. Such discrimination cannot
be justified by the financial detriment that would be suffered by the employer
during the woman's maternity leave.
Dekker v VJV-Centrum [1991]
IRLR 27 ECJ
If the reason a woman is not
selected is because she is pregnant, the decision is directly related to the
applicant's sex and it is not important that there were no male
claimants.
Mahlburg v Land
Mecklenburg-Vorpommern [2000] IRLR 276 ECJ
It is contrary to Article 2(1) of the Equal Treatment
Directive for an employer to refuse to appoint a pregnant woman to a post of an
unlimited duration on the ground that a statutory prohibition on employment
arising on account of her pregnancy would prevent her from being employed in
that post from the outset and for the duration of the pregnancy.
Busch v Klinikum Neustadt
GmbH & Co Betriebs-KG [2003] IRLR 625 ECJ
It is contrary to Article 2(1) of the Equal Treatment
Directive to require an employee who wishes to return to work before the end of
parental leave to inform her employer that she is pregnant, even though she will
be unable to carry out all of her duties because of legislative provisions. Such
discrimination cannot be justified by the fact that a woman is temporarily
prevented from performing all of her duties by a legislative prohibition imposed
because of pregnancy. That would be contrary to the objective of protection
pursued by the Equal Treatment Directive and the Pregnant Workers Directive and
would rob them of any practical effect.
Access to training
Application of the principle of equal treatment with regard to access to all types, and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, means that Member States shall take all necessary measures to ensure that:
(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;
(b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended;
(c) without prejudice to the
freedom granted in certain Member States to certain private training
establishments, vocational guidance, vocational training, advanced training and
retraining shall be accessible on the basis of the same criteria and at the same
levels without any discrimination on grounds of sex.
Equal Treatment Directive - Article 4(1)
Johnston v The Chief
Constable of the Royal Ulster Constabulary [1986] IRLR 263 ECJ
The application of the principle of equal treatment to the
conditions governing access to training, as set out in Article 4(1) of the Equal
Treatment Directive, is unconditional and sufficiently precise so that it may be
relied upon by individuals as against a Member State where that Member State
fails to implement it correctly.
Working conditions and dismissal
(1) Application of the
principle of equal treatment with regard to working conditions, including the
conditions governing dismissal, means that men and women shall be guaranteed the
same conditions without discrimination on grounds of sex.
Equal Treatment Directive - Article
5
Marshall v Southampton and
South-West Hampshire Area Health Authority [1986] IRLR 140 ECJ
Article 5(1) of the Equal Treatment Directive may be relied
upon as against a State authority acting in its capacity as employer, in order
to avoid the application of any national provision which does not conform to
Article 5(1). Article 5(1) is sufficiently precise and unconditional to be
relied on by individuals and to be applied by national courts. The provision,
taken by itself, prohibits any discrimination on grounds of sex with regard to
working conditions in a general manner and in unequivocal terms. It does not
confer on Member States the right to limit the application of the principle of
equality of treatment in its field of operation or to subject it to
conditions.
Meyers v Adjudication
Officer [1995] IRLR 498 ECJ
To confine the concept of a
working condition within the meaning of Article 5 solely to those working
conditions which are set out in the contract of employment or applied by the
employer in respect of a worker's employment would remove situations directly
covered by an employment relationship from the scope of the Directive.
Therefore, a benefit such as family credit, which is necessarily linked to an
employment relationship, constitutes a working condition within the meaning of
Article 5 of the Directive.
Discriminatory retirement ages
Burton v British Railways
Board [1982] IRLR 116 ECJ
"Dismissal" for the purposes
of Article 5(1) of the Equal Treatment Directive must be widely
construed.
Marshall v Southampton and
South-West Hampshire Area Health Authority [1986] IRLR 140 ECJ
A general policy concerning dismissal involving the
dismissal of a woman solely because she has attained the qualifying age for a
State pension, which age is different under national legislation for men and
women, constitutes discrimination on grounds of sex contrary to Article 5(1) of
the Equal Treatment Directive. In accordance with the decision of the European
Court in Burton v British Railways Board, the term "dismissal" in Article 5(1)
must be given a wide meaning. An age limit for the compulsory dismissal of
workers pursuant to an employer's general policy concerning retirement relates
to the conditions governing dismissal, to be determined in accordance with the
Equal Treatment Directive, even if the dismissal involved the grant of a
retirement pension.
Pensions
(1) The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as "the principle of equal treatment".
(2) With a view to ensuring
the progressive implementation of the principle of equal treatment in matters of
social security, the Council, acting on a proposal from the Commission, will
adopt provisions defining its substance, its scope and the arrangements for its
application.
Equal Treatment
Directive - Article 1
(1) This Directive shall be without prejudice to the right of Member States to exclude from its scope:
(a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits;
(b) advantages in respect of old-age pension schemes granted to persons who have brought up children; the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children;
(c) the granting of old-age or invalidity benefit entitlements by virtue of the derived entitlements of a wife;
(d) the granting of increases of long-term invalidity, old-age, accidents at work and occupational disease benefits for a dependent wife;
(e) the consequences of the
exercise, before the adoption of this Directive, of a right of option not to
acquire rights to incur obligations under a statutory scheme.
Social Security Directive - Article
7
Marshall v Southampton and South-West Hampshire Area Health Authority [1986] IRLR 140 ECJ
The exclusion of social security matters from the scope of the Equal Treatment Directive must be interpreted strictly so that the exception to the prohibition of discrimination on grounds of sex provided for in Article 7(1) of the Social Security Directive 79/7 applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.
Burton v British Railways
Board [1982] IRLR 116 ECJ
The conditions of access to
a voluntary redundancy benefit paid by an employer to a worker wishing to leave
his employment are covered by the principle of equal treatment contained in
Article 5(1).
Roberts v Tate & Lyle
Industries Ltd [1986] IRLR 150 ECJ
A contractual
provision which lays down a single age for the dismissal of both men and women
under a mass redundancy involving the grant of an early retirement pension, in
circumstances where the normal retirement age is different for men and women,
does not constitute discrimination on grounds of sex contrary to Article 5(1) of
the Equal Treatment Directive. The fixing of the same age for both sexes for the
grant of an early pension does not amount to discrimination on grounds of sex
even though under the statutory social security scheme the pensionable age for
men and women is different.
R v Secretary of State for
Social Security ex parte Equal Opportunities Commission [1992] IRLR 376 ECJ
Article 7(1)(a) of EC Social Security Directive 79/7, which
allows Member States to exclude from the principle of equal treatment "the
determination of pensionable age for the purposes of granting old-age and
retirement pensions and the possible consequences thereof for other benefits",
authorises the maintenance of different contribution periods for male and female
workers under a State pension scheme such as in the UK. The power of derogation
conferred by Article 7(1)(a) does not merely allow men and women to be treated
unequally with respect to the moment at which they become entitled to a pension.
It also covers other forms of discrimination if they are found to be necessary
in order to achieve the objectives which the Directive is intended to
pursue.
Pregnancy
Brown v Rentokil Ltd [1998]
IRLR 445 ECJ
Dismissal of a woman at any
time during her pregnancy for absences due to incapacity for work caused by an
illness resulting from that pregnancy is direct discrimination on grounds of sex
contrary to the EC Equal Treatment Directive.
Webb v EMO Air Cargo (UK)
Ltd [1994] IRLR 482 ECJ
It is contrary to the Equal
Treatment Directive to dismiss a woman employed for an unlimited term who,
shortly after her recruitment is found to be pregnant, even though she was
recruited initially to replace another employee during the latter's maternity
leave and notwithstanding that the employer would have dismissed a male employee
engaged for this purpose who required leave of absence at the relevant time for
medical or other reasons.
Webb v EMO Air Cargo (UK)
Ltd [1994] IRLR 482 ECJ
Dismissal of a pregnant
woman recruited for an indefinite period cannot be justified on grounds relating
to her inability to fulfil a fundamental condition of her contract of
employment.
Tele Danmark v HK (acting on
behalf of Brandt-Nielsen) [2001] IRLR 853 ECJ
Article 5 of the Equal Treatment Directive and Article 10
of the Pregnant Workers Directive preclude a worker from being dismissed on the
ground of pregnancy, notwithstanding that she was recruited for a fixed period,
failed to inform the employer that she was pregnant even though she was aware of
this when the contract of employment was concluded, and because of her pregnancy
was unable to work during a substantial part of the term of that contract.
Dismissal of a worker on account of pregnancy constitutes direct discrimination
on grounds of sex, whatever the nature and extent of the economic loss incurred
by the employer as a result of her absence because of pregnancy. Whether the
contract was concluded for a fixed or an indefinite period has no bearing on the
discriminatory character of the dismissal. In either case the employee's
inability to perform her contract of employment is due to pregnancy.
Brown v Rentokil Ltd [1998]
IRLR 445 ECJ
It is direct discrimination
on grounds of sex to dismiss a pregnant woman because of absences resulting from
pregnancy in accordance with a contractual term providing that an employer may
dismiss workers of either sex after a stipulated number of weeks of continuous
absence.
Brown v Rentokil Ltd [1998]
IRLR 445 ECJ
The Equal Treatment
Directive affords a woman protection against dismissal on grounds of her absence
throughout the period of pregnancy and during the maternity leave accorded to
her under national law. Where a woman is absent owing to illness resulting from
pregnancy or childbirth, and that illness arose during pregnancy and persisted
during and after maternity leave, her absence not only during maternity leave
but also during the period extending from the start of her pregnancy to the
start of her maternity leave cannot be taken into account for computation of the
period justifying her dismissal under national law. Absence after maternity
leave may be taken into account under the same conditions as a man's absence
through incapacity for work of the same duration.
Habermann-Beltermann v
Arbeiterwohlfahrt, Bezirksverband Ndb/Opf eV [1994] IRLR 364 ECJ
Termination of a contract without a fixed term on account
of a woman's pregnancy cannot be justified on the ground that a statutory
prohibition, imposed because of pregnancy, temporarily prevents the employee
from performing night work.
Jiménez Melgar v
Ayuntamiento de Los Barrios [2001] IRLR 848 ECJ
Non-renewal of a fixed-term contract is a refusal of
employment and, where non-renewal of a fixed-term contract is based on the
worker's pregnancy, it constitutes direct discrimination on grounds of sex
contrary to Articles 2(1) and 3(1) of the Equal Treatment Directive.
Handels- og
Kontorfunktionærernes Forbund i Danmark (acting for Hertz) v Dansk
Arbejdsgiverforening (acting for Aldi Marked K/S) [1991] IRLR 31 ECJ
The Equal Treatment Directive does not preclude dismissals
resulting from absence due to an illness which originated in pregnancy or
confinement and which appears after maternity leave.
CNAVTS v Thibault [1998]
IRLR 399 ECJ
The principle of
non-discrimination on grounds of sex in working conditions requires that a woman
who continues to be bound to her employer by her contract of employment during
maternity leave should not be deprived of the benefit of working conditions
which apply to both men and women and are the result of that employment
relationship. The exercise by women of pregnancy and maternity rights cannot be
the subject of unfavourable treatment regarding their access to employment or
their working conditions.
Gillespie v Northern Health
and Social Services Board [1996] IRLR 214 ECJ
The Equal Treatment Directive does not apply to pay. Since
the benefit paid during maternity leave constitutes pay and falls within the
scope of Article 141 and the Equal Pay Directive, it cannot be covered by the
Equal Treatment Directive as well.
CNAVTS v Thibault [1998]
IRLR 399 ECJ
It is contrary to the Equal
Treatment Directive for a woman to be accorded unfavourable treatment regarding
her working conditions by being deprived of the right to an annual assessment of
her performance and, therefore, of the opportunity of qualifying for promotion
to a higher pay grade as a result of her absence on account of maternity
leave.
Boyle v Equal Opportunities
Commission [1998] IRLR 717 ECJ
A contractual
term according to which a worker who does not return to work after childbirth is
required to repay the difference between the pay received by her during her
maternity leave and the Statutory Maternity Pay to which she was entitled does
not constitute discrimination on grounds of sex contrary to EC law,
notwithstanding that for other forms of paid leave, such as sick leave, workers
are entitled to their salary without having to undertake to return to work at
the end of their leave. The situation of a pregnant woman cannot be compared to
that of a man or a woman on sick leave.
Boyle v Equal Opportunities
Commission [1998] IRLR 717 ECJ
EC law does not
preclude a clause in a contract of employment which requires a woman who is on
sick leave with a pregnancy-related illness to take paid maternity leave if the
period of sick leave occurs within six weeks of the expected date of childbirth,
notwithstanding that any other worker who is sick is entitled to exercise their
right to unconditional paid sick leave.
Boyle v Equal Opportunities Commission [1998] IRLR 717
ECJ
EC law does not preclude a
clause in a contract of employment which limits the period during which annual
holiday accrues to the statutory minimum 14 weeks' maternity leave period and
which provides that annual holiday ceases to accrue during any period of
supplementary maternity leave granted by the employer.
Transsexuals
P v S [1996] IRLR 347 ECJ
Dismissal of a transsexual for a reason related to a gender
reassignment must be regarded as contrary to Article 5(1) of the
Directive.
Indirect discrimination under EC law
R v Secretary of State for
Employment ex parte Seymour-Smith [1999] IRLR 253 ECJ
In order to establish whether a measure adopted by a Member
State has disparate effect as between men and women to such a degree as to
amount to indirect discrimination for the purposes of Article 141, the national
court must verify whether the statistics indicate that a considerably smaller
percentage of women than men is able to satisfy the condition required. That
would be evidence of apparent sex discrimination. That could also be the case if
the statistical evidence revealed a lesser but persistent and relatively
constant disparity over a long period between men and women who satisfy the
requirement.
R v Secretary of State for
Employment ex parte Seymour-Smith (No.2) [2000] IRLR 363 HL
The approach adopted by the European Court is similar to
that provided in s.1(1)(b) of the Sex Discrimination Act. A considerable
disparity can be more readily established if the statistical evidence covers a
long period and the figures show a persistent and relatively constant disparity.
In such a case, a lesser statistical disparity may suffice to show that the
disparity is considerable than if the statistics cover only a short period or if
they present an uneven picture.
R v Secretary of State for
Employment ex parte Seymour-Smith [1999] IRLR 253 ECJ
The best approach for determining whether a rule has a more
unfavourable impact on women than on men is to consider the respective
proportions of men in the workforce able to satisfy the requirement and those
unable to do so, and to compare those proportions as regards women in the
workforce.
R v Secretary of State for
Employment ex parte Seymour-Smith (No.2) [2000] IRLR 363 HL
The applicants had shown that at the time of their
dismissal in 1991 the two-year qualifying period to bring an unfair dismissal
complaint had a disparately adverse impact on women so as to amount to indirect
discrimination contrary to Article 141 in circumstances in which, from 1985 up
to and including 1991, the ratio of men and women who qualified was roughly
10:9. A persistent and constant disparity of that order in respect of the entire
male and female labour forces was adequate to demonstrate that the extension of
the qualifying period from one to two years had a considerably greater adverse
impact on women than men.
Jørgensen v Foreningen af
Speciallæger [2000] IRLR 726 ECJ
In order to
determine whether a collective agreement indirectly discriminates on grounds of
sex, the Equal Treatment Directive requires a separate assessment to be made of
each of the key conditions laid down in the contested provisions, in so far as
those key elements constitute in themselves specific measures based on their own
criteria of application and affecting a significant number of persons belonging
to a determined category. An overall assessment of all the elements which might
be involved in a scheme or a set of provisions would not allow effective review
of the application of the principle of equal treatment and might not comply with
the rules governing the burden of proof in matters relating to indirect
discrimination on grounds of sex.
R v Secretary of State for
Employment ex parte Seymour-Smith [1999] IRLR 253 ECJ
If a considerably smaller percentage of women than men is
capable of fulfilling a statutory requirement, such as the service qualification
for unfair dismissal, it is for the Member State, as the author of the allegedly
discriminatory rule, to show that the said rule reflects a legitimate aim of its
social policy, that that aim is unrelated to any discrimination based on sex,
and that it could reasonably consider that the means chosen were suitable for
attaining that aim.
Nolte v
Landesversicherrungsanstalt Hannover [1996] IRLR 225 ECJ
A legislative measure is based on objective factors
unrelated to discrimination on grounds of sex where the measure chosen reflects
a legitimate social policy of the Member State, is appropriate to achieve that
aim and necessary in order to do so. However, social policy is a matter for the
Member States. Consequently, the Member States have a broad margin of discretion
in exercising their competence to choose the measures capable of achieving the
aim of their social and employment policy.
Kruger v Kreiskrankenhaus
Ebersberg [1999] IRLR 808 ECJ
The exclusion of
persons in "minor" employment from the scope of a collective agreement providing
for the grant of a special annual bonus was indirect discrimination within the
meaning of Article 141 where it affected a considerably higher percentage of
women than men. The exclusion was not justified since an exclusion from the
benefit of a collective agreement is a different situation from that in Nolte
and Megner, in which the Court held that the exclusion of persons in minor
employment from social insurance fell within the broad margin of discretion of
Member States to choose the measures for achieving the aims of their social and
employment policy.
R v Secretary of State for
Employment ex parte Seymour-Smith [1999] IRLR 253 ECJ
In order to show that a measure is justified by objective
factors unrelated to any discrimination based on sex, it is not sufficient for a
Member State to show that it was reasonably entitled to consider that the
measure would advance a social policy aim. Although, in the Nolte case, the
Court observed that, in choosing the measures capable of achieving the aims of
their social and employment policy, the Member States have a broad margin of
discretion, that cannot have the effect of frustrating the implementation of a
fundamental principle of Community law such as that of equal pay for men and
women. Mere generalisations concerning the capacity of a specific measure to
encourage recruitment are not enough to show that the aim of the disputed rule
is unrelated to any discrimination based on sex nor to provide evidence on the
basis of which it could reasonably be considered that the means chosen were
suitable for achieving that aim.
Jørgensen v Foreningen af
Speciallæger [2000] IRLR 726 ECJ
Budgetary
considerations cannot in themselves justify discrimination on grounds of sex.
Although budgetary considerations may underlie a Member State's choice of social
policy and influence the nature or scope of the social protection measures which
it wishes to adopt, they do not in themselves constitute an aim pursued by that
policy and cannot therefore justify discrimination against one of the
sexes.
Kutz-Bauer v Freie und
Hansestadt Hamburg [2003] IRLR 368 ECJ
An employer
cannot justify discrimination solely because avoidance of such discrimination
would involve increased costs.
Kachelmann v Bankhaus
Hermann Lampe KG [2001] IRLR 49 ECJ
The Equal
Treatment Directive does not preclude a selection process for dismissal when a
part-time job is abolished on economic grounds that does not compare full-time
workers with part-time workers, even though this may create an indirect
disadvantage for part-time workers. If comparability between full-time and
part-time workers were to be introduced in the selection process, that would
have the effect of placing part-time workers at an advantage, while putting
full-time workers at a disadvantage since, in the event of their jobs being
abolished, part-time workers would have to be offered a full-time job, even if
their employment contract did not entitle them to one.
R v Secretary of State for
Employment ex parte Seymour-Smith (No.2) [2000] IRLR 363 HL
The onus is on the Member State to show (1) that the
allegedly discriminatory rule reflects a legitimate aim of its social policy,
(2) that this aim is unrelated to any discrimination based on sex, and (3) that
the Member State could reasonably consider that the means chosen were suitable
for attaining that aim. Governments must be able to govern and are to be
afforded a broad measure of discretion. Generalised assumptions, lacking any
factual foundation, are not good enough, but national courts, acting with
hindsight, are not to impose an impracticable burden on governments which are
proceeding in good faith.
R v Secretary of State for
Employment ex parte Seymour-Smith (No.2) [2000] IRLR 363 HL
If the Government introduces a measure which proves to have
a disparately adverse impact, it is under a duty to take reasonable steps to
monitor the working of the measure and review the position periodically. The
requirements of Community law must be complied with at all relevant times. The
retention of a measure having a disparately adverse impact may no longer be
objectively justifiable.
R v Secretary of State for
Employment ex parte Seymour-Smith (No.2) [2000] IRLR 363 HL
The Secretary of State had discharged the burden of showing
that he was reasonably entitled in 1985 to consider that the extension of the
unfair dismissal qualifying period from one to two years was justified by
objective factors unrelated to sex, and that the 1985 Order was still
objectively justified in 1991.
R v Secretary of State for
Education ex parte Schaffter [1987] IRLR 53 HC
Statutory eligibility requirements for education grants
which distinguished between single and married lone parents and had a
disproportionate impact upon women had not been shown to be objectively
justified for the purposes of the Equal Treatment Directive where the argument
relied upon by the Secretary of State did not give reasons for the distinction
drawn but merely stated that the purpose of the Regulations was to benefit
married lone parents. That did not amount to a justification. Therefore, the
requirements infringed the principle of equal treatment for men and women as
regards access to vocational training embodied in the Equal Treatment
Directive.
Qualifying thresholds
R v Secretary of State for
Employment ex parte Equal Opportunities Commission [1994] IRLR 176 HL
The provisions of the Employment Protection (Consolidation)
Act whereby employees who work for fewer than 16 hours per week were subject to
different conditions in respect to qualification for redundancy pay from those
which apply to employees who work for 16 hours per week or more are incompatible
with Article 141 of the EC Treaty and EC Equal Pay Directive 75/11.
R v Secretary of State for
Employment ex parte Equal Opportunities Commission [1994] IRLR 176 HL
The provisions of the Employment Protection (Consolidation)
Act whereby employees who work for fewer than 16 hours per week were subject to
different conditions in respect of the right to compensation for unfair
dismissal are incompatible with EC Equal Treatment Directive 76/207.
R v Secretary of State for
Employment ex parte Equal Opportunities Commission [1994] IRLR 176 HL
No objective justification for the hours per week
qualifying thresholds in the Employment Protection (Consolidation) Act had been
established by the Secretary of State where, on the evidence, the threshold
provisions had not been proved actually to result in greater availability of
part-time work than would be the case without them.
R v Secretary of State for
Trade & Industry ex parte Unison [1996] IRLR 464 CA
It was lawful under EC law for the 1995 Regulations to
exempt employees with less than two years' continuous service from the
protection against dismissal by reason of a transfer guaranteed by Article 4 of
Directive 77/187, since the two-year qualifying period could not be regarded as
having a disparate adverse impact on women. Evidence that the disparity between
the percentage of female employees who could comply with a two-year service
qualification with their employer compared with the percentage of male employees
who could comply was only four percentage points suggested that this fell within
the de minimis exception and was not a considerable difference. Thus if the
Secretary of State had considered, or if he were to consider, this question, it
would be open to him to conclude that the disparity was less than considerable
and there would be no obligation upon him to consider objective
justification.
Sanctions
Member States shall
introduce into their national legal systems such measures as are necessary to
enable all persons who consider themselves wronged by failure to apply to them
the principle of equal treatment within the meaning of Articles 3, 4 and 5 to
pursue their claims by judicial process after possible recourse to other
competent authorities.
Equal
Treatment Directive - Article 6
Coote v Granada Hospitality
Ltd [1998] IRLR 656 ECJ
By virtue of Article 6, all
persons have the right to obtain an effective remedy in a competent court
against measures which they consider interfere with the equal treatment for men
and women laid down in the Directive. It is for the Member States to ensure
effective judicial control of compliance with the applicable provisions of
Community law and of national legislation intended to give effect to the rights
for which the Directive provides.
Marshall v Southampton and
South-West Hampshire Area Health Authority (No.2) [1993] IRLR 445 ECJ
Article 6 of EC Equal Treatment Directive 76/207 must be
interpreted as meaning that compensation for the loss and damage sustained by a
victim of discrimination may not be limited by national law to an upper limit
fixed a priori or by excluding an award of interest to compensate for the loss
sustained by the recipient as a result of the effluxion of time until the
capital sum awarded is actually paid. Financial compensation must be adequate,
in that it must enable the loss and damage actually sustained as a result of
discrimination to be made good in full in accordance with the applicable
national rules.
Marshall v Southampton and
South-West Hampshire Area Health Authority (No.2) [1993] IRLR 445 ECJ
Article 6 of the Equal Treatment Directive may be relied
upon by individuals before the national courts as against an authority of the
State acting in its capacity as an employer in order to set aside a national
provision which imposes limits on the amount of compensation recoverable by way
of reparation.
Dekker v VJV-Centrum [1991]
IRLR 27 ECJ
The Equal Treatment
Directive does not make the liability of the discriminator in any way dependent
upon evidence of fault on the part of the employer, nor require that it be
established that there are no grounds for justification which he can take
advantage of. Accordingly, where a Member State chooses a civil law sanction,
any breach of the prohibition of discrimination must in itself be sufficient to
impose full liability on the discriminator and no account can be taken of
grounds for justification provided for under national law.
Dræhmpæhl v Urania
Immobilenservice ohG [1997] IRLR 538 ECJ
The Equal Treatment Directive precludes provisions of
domestic law which, unlike other provisions of domestic civil and labour law,
place an upper limit of three months' salary for the job in question as the
amount of compensation which may be claimed by an applicant discriminated
against on grounds of sex in the making of an appointment, where that applicant
would have obtained the vacant position if the selection process had been
carried out without discrimination. A Member State must ensure that
infringements of Community law are penalised under procedural and substantive
conditions which are analogous to those applicable to infringements of domestic
law of a similar nature and importance.
EC law and UK law
General principles
Webb v EMO Air Cargo (UK)
Ltd [1993] IRLR 27 HL
Although an EC Directive
does not have direct effect upon the relationship between a worker and an
employer who is not an emanation of the State, it is for a United Kingdom court
to construe domestic legislation in any field covered by a Community Directive
so as to accord with the interpretation of the Directive as laid down by the
European Court, if that can be done without distorting the meaning of the
domestic legislation. That is so whether the domestic legislation came after or
preceded the Directive. However, as the European Court said in the Marleasing
case, a national court must construe a domestic law to accord with the terms of
a Directive in the same field only if it is possible to do so. That means that
the domestic law must be open to an interpretation consistent with the
Directive.
Porter v Cannon Hygiene Ltd
[1993] IRLR 329 NICA
If in a given situation
there are two possible interpretations of a provision in national law and one of
them accords with the wording and purpose of a relevant EC Directive while the
other does not do so, the national court's duty under the EC Treaty is to prefer
the interpretation which accords with the Directive. However, there is no "usual
method of interpretation" which enables or permits a court simply to disregard a
statutory provision or interpret it in a sense directly opposite to that which
the House of Lords has said is the correct interpretation.
Specific examples
Duke v GEC Reliance [1988]
IRLR 118 HL
As s.6(4) of the Sex
Discrimination Act 1975 was intended to preserve discriminatory retirement ages,
it was not possible to construe it in a manner which gave effect to EC Equal
Treatment Directive 76/207 as interpreted by the European Court of Justice in
the first Marshall decision.
Finnegan v Clowney Youth
Training Programme Ltd [1990] IRLR 299 HL
The exclusion of complaints relating to retirement in
Article 8(4) of the Sex Discrimination (Northern Ireland) Order 1976 was
indistinguishable from the exclusion in s.6(4) of the Sex Discrimination Act
1975 which the House of Lords, in Duke v GEC Reliance, held was not to be
construed so as to conform to the EC Equal Treatment Directive
76/207.
