.gif){kind=small}
BACK TO HOME
PAGE BACK TO HOME
PAGE EUROPEAN REVIEW
The two year qualifying period for employees to get protection against unfair dismissal is the subject of a European Court of Justice review. The House of Lords referred a case to the Court following arguments put forward in an industrial tribunal and court of appeal which claimed that the time requirement discriminated indirectly against women. Seven per cent more women than men fail the time test, lawyers argued in a case involving Camden Law Centre. The Court is due to rule this spring on whether the UK's employment law goes against the European Union equal treatment directive of 1985. If Luxembourg agrees with the lawyers, thousands of cases for compensation could be brought dating from the introduction of the directive. John Monks, TUC general secretary, has said that employment rights should not depend on length of service.
Sometimes the length of time in a job determines your pay and promotion prospects. But what if you've had career breaks to bring up children, or spent some years job sharing or part-time? Companies that operate these so called seniority rules are coming under fire in Europe because their effect is to discriminate indirectly against women. Helen Gerster worked in the Bavarian civil service, which treated hours worked as part of a full-time or part-time job differently. Promotion was on the basis of merit and length of service, calculated as above. Helen's application for promotion was rejected so and her case ended up in the European Court of Justice. The Court ruled that the 1976 Directive on equal treatment does not permit the weighting of hours (for calculating service for public servants) practised by the Bavarian state. Bavaria amended the rules to to treat their employees alike regardless of hours worked.
Under the 1980 Insolvency Directive, each member state must set up a fund to guarantee payment of outstanding wages in the event of an employers insolvency. But when a company is registered in one country and goes bust in another, which national fund should an employee claim against? Carina Mosbúk worked for a UK registered company but her job was in Denmark. She was paid directly, with no deductions for Danish NI, tax or pension. When the company folded, Carina went her home country's insolvency fund for outstanding wages but was turned away. The European Court ruled the relevant national fund is in the state where either creditors have opened proceedings or it has been established that the employer's business has closed.
The defendant in cases before the European Court of Justice will now have to justify the apparent unequal treatment rather than the plaintiff (the employee) having to prove discrimination. The new common position agreed by member states directs members to take measures to so that when a person goes to court or other authority to remedy an apparent discrimination, it is up to the respondent to prove that there has been no contravention of the principle of equal treatment. The common position covers both direct and indirect discrimination, for example where a seemingly neutral practice disadvantages a substantially higher proportion of one sex.
An employer's refusal to grant a pay benefit in respect of a cohabitee of the same gender as the employee constitutes discrimination on the basis of gender, a senior lawyer has told the European Court. This means that perks offered to a spouse or partner should not be witheld because that person is of the same sex as the employee. Lisa Grant felt herself to be discriminated against by South West Trains so she took them to an industrial tribunal. The tribunal were asked to rule that SW Trains breached EC treaty and directives on equal pay and equal treatment. The tribunal referred the case to the European Court for advice on interpretation. As with all such cases, it is first considered by an advocate-general who make recommendations to the court. The advice is usually accepted.
|
Back to |
Forward to |
Up to |
Back to |
