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Rulings

ECJ 12 May 2021, Case C-130/20 (INSS (Complément de pension pour les mères – II)), Gender Discrimination, Pension

YJ – v – Instituto Nacional de la Seguridad Social (INSS), Spanish case

Journal European Employment Law Cases, Issue 2 2021
Keywords Gender Discrimination, Pension
Abstract

    Directive 79/7 on equal treatment for men and women in matters of social security does not apply to national legislation which grants a pension supplement to women with at least two children who retire (early) on grounds of law but not in case of voluntary early retirement, as the Directive concerns discrimination between men and women.

Landmark Ruling

ECJ 3 June 2021, case C-624/19 (Tesco Stores), Gender Discrimination, Discrimination General

[Employees] – v – Tesco Stores Ltd, UK case

Journal European Employment Law Cases, Issue 2 2021
Keywords Gender Discrimination, Discrimination General
Abstract

    The principle, laid down by EU law, of equal pay for male and female workers can be relied upon directly, in respect both of ‘equal work’ and of ‘work of equal value’, in proceedings between individuals.

    In 2014, the ECJ was presented with a preliminary reference from the District Court in Kolding on the matter of whether EU law provides protection against discrimination on grounds of obesity with regard to employment and occupation. Following the ECJ’s ruling, first the District Court and later the High Court found that an employee’s obesity as such did not constitute a disability within the meaning of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation since his obesity had not constituted a limitation or inconvenience in the performance of his job.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding.

    On 16 December 2020, the Supreme Court of Lithuania (Cassation Court) delivered a ruling in a case where an employee claimed that the employer, JSC ‘Lithuanian Railways’, did not apply the regulations of the company’s employer-level collective agreement and did not pay a special bonus – an anniversary benefit (i.e. a benefit paid to employees on reaching a certain age) – because the employee was not a member of the trade union which had signed the collective agreement. According to the employee, she was discriminated against because of her membership of another trade union, i.e membership of the ‘wrong’ trade union.
    The Supreme Court held that combatting discrimination under certain grounds falls within the competence and scope of EU law, but that discrimination on the grounds of trade union membership is not distinguished as a form of discrimination. Also, the Court ruled that in this case (contrary to what the employee claimed in her cassation appeal) Article 157 of the Treaty on the Functioning of the European Union (TFEU) is not applicable because it regulates the prohibition of discrimination on other (sex) grounds. Moreover, the Court found that there was no legal basis for relying on the relevant case law of the ECJ which provides clarification on other forms of discrimination, but not on discrimination based on trade union membership.


Vida Petrylaitė
Vida Petrylaitė is an associate professor at Vilnius university.
Case Reports

2021/4 Budget considerations can justify indirect discrimination (UK)

Journal European Employment Law Cases, Issue 1 2021
Keywords Discrimination General, Age Discrimination
Authors Carolyn Soakell
AbstractAuthor's information

    If an employer has a policy which is indirectly discriminatory and the employer’s aim is no more than saving money, the Court of Appeal (CA) has ruled that this cannot justify the discrimination. However, needing to balance the books can potentially be a valid justification for indirect discrimination.


Carolyn Soakell
Carolyn Soakell is a partner at Lewis Silkin LLP.
Rulings

ECJ 21 January 2021, C-843/19 (INSS), Gender Discrimination, Pension

Instituto Nacional de la Seguridad Social (INSS) – v – BT

Journal European Employment Law Cases, Issue 1 2021
Keywords Gender Discrimination, Pension
Abstract

    Requiring a minimum pension amount for allowing early retirement is not contrary to Article 4(1) of Directive 79/7 even if it puts female workers at a particular disadvantage, provided that this is justified by legitimate reasons of social policy which are not related to gender discrimination.

Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
Pending Cases

Case C-625/20, Social Insurance, Gender Discrimination

KM – v – Instituto Nacional de la Seguridad Social (INSS), reference lodged by the Juzgado de lo Social n.º 26 de Barcelona (Spain) on 19 November 2020

Journal European Employment Law Cases, Issue 1 2021
Keywords Social Insurance, Gender Discrimination
Rulings

ECJ 19 November 2020, Case C-93/19 P (EEAS – v – Hebberecht), Gender Discrimination, Miscellaneous

European External Action Service (EEAS) – v – Chantal Hebberecht, EU case

Journal European Employment Law Cases, Issue 4 2020
Keywords Gender Discrimination, Miscellaneous
Abstract

    In its consideration of Ms Hebberecht’s request to extend her posting, EEAS could not exclude equal treatment aspects from the consideration on grounds that they were not deemed relevant in the interests of the service.

Pending Cases

Case C-389/20, Gender Discrimination

CJ – v – Tesorería General de la Seguridad Social, reference lodged by the Juzgado de lo Contencioso-Administrativo n.º 2 de Vigo (Spain) \ on 14 August 2020

Journal European Employment Law Cases, Issue 4 2020
Keywords Gender Discrimination

    Deductions from pensions larger than a certain threshold do not necessarily constitute gender and/or age discrimination.

    The Danish Supreme Court recently held that an employer had discharged the reversed burden of proof in a case concerning a physiotherapist who was dismissed shortly after her return from maternity leave.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Pending Cases

Case C-372/20, Social Insurance, Gender Discrimination

QE – v – Finanzamt Wien für den 8., 16. und 17. Bezirk, reference lodged by the Bundesfinanzgericht (Austria) on 6 August 2020

Journal European Employment Law Cases, Issue 4 2020
Keywords Social Insurance, Gender Discrimination
Pending Cases

C-405/20, Gender Discrimination, Pension

EB and Others – v – Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB), reference lodged by the Verwaltungsgerichtshof (Austria) on 28 August 2020

Journal European Employment Law Cases, Issue 4 2020
Keywords Gender Discrimination, Pension

    On 13 December 2019 the European Free Trade Association (EFTA) Court held that a national provision that renders a father’s entitlement to parental benefits during a shared period of leave dependent on the mother’s situation, but not vice versa, fell outside the scope of Directive 2006/54/EC (the Equal Treatment Directive) since it did not concern “employment and working conditions” within the meaning of Article 14(1)(c) of that Directive. The action brought by the EFTA Surveillance Authority (ESA) was thus dismissed. The Court consequently did not consider whether the Norwegian rules amounted to unlawful discrimination under the Directive. Furthermore, no assessment was made as to the potential breach with the general principle of equality of gender under EEA law, as this had not been pleaded by ESA.


Jonas Thorsdalen Wik
Jonas Thorsdalen Wik is an attorneys-at-law at Hjort Law Firm (Oslo, Norway).

Dag Sørlie Lund
Dag Sørlie Lund is an attorneys-at-law at Hjort Law Firm (Oslo, Norway).
Rulings

ECJ 18 November 2020, Case C-463/19 (Syndicat CFTC), Gender Discrimination

Syndicat CFTC du personnel de la Caisse primaire d’assurance maladie de la Moselle – v – Caisse primaire d’assurance maladie de la Moselle, French case

Journal European Employment Law Cases, Issue 4 2020
Keywords Gender Discrimination
Abstract

    A national collective agreement may reserve to mothers alone an additional maternity leave, as long as it seeks to protect them from the effects of pregnancy and motherhood.

    No breach of diplomat’s rights when she was recalled from a post abroad because she was pregnant.

Case Reports

2020/18 Prohibition of dismissal of pregnant employee (RO)

Journal European Employment Law Cases, Issue 2 2020
Keywords Gender discrimination
Authors Andreea Suciu and Teodora Mănăilă
AbstractAuthor's information

    Analysing the national legal framework in relation to the protection of pregnant employees and employees who have recently given birth or are breastfeeding, provisions which transposed the regulations of Directive 92/85/EEC and of the conclusions in case C-103/16, Jessica Porras Guisado – v – Bankia S.A. and Others, the Constitutional Court of Romania ascertained that the dismissal prohibition of a pregnant employee is strictly restricted to reasons that have a direct connection with the employee’s pregnancy status. As for other cases where the termination of the employment contract is the result of disciplinary misconduct, unexcused absence from work, non-observance of labour discipline, or termination of employment for economic reasons or collective redundancies, the employer must submit in writing well-reasoned grounds for dismissal.


Andreea Suciu
Andreea Suciu is Managing Partner and attorney-at-law at Suciu | The Employment Law Firm, Bucharest, Romania.

Teodora Mănăilă
Teodora Mănăilă is Managing Partner and attorney-at-law at Suciu | The Employment Law Firm, Bucharest, Romania.
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