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There has been a spate of cases concerning positive action/discrimination in recruitment and promotion in recent months, many of which we have covered in the European Review. In this issue we take an overview of the court's attitude to this issue and ask what the implications might be for home-grown law and employment practices.
Positive action good, positive discrimination bad. This could serve as the one line summing up of the attitude which the European Court of Justice has taken to recent cases brought before it which concern this issue. Usually a case has been brought by a person (not always male) who has been turned down for a post on the grounds that legislation in force in a particular Member State to 'secure equal opportunities for a specific, naturally or historically disadvantaged group', in the words of the Advocate General, means that another candidate should get the job. In practice this nearly always means laws that seek to redress an under-representation of women in the workplace. The complainant has often used the Equal Treatment directive to claim that such national laws should be revoked.
The court has ruled both against and in favour of the complainant in these cases and the distinction made between lawful action and unlawful discrimination has often been subtle. In the case of Badeck in Hesse, Germany (see Issue 13) the local law stated that where women were under-represented in public sector posts there should be a recruitment plan which would aim at a target of fifty per cent of them being filled by women. However this did not mean that a woman would be automatically selected over a man; only if the candidates were equally qualified and there were no social factors favouring the man such as long term unemployment or disablement would the plan select the female applicant. The court found that this provision did not break the Equal Treatment directive because the individual circumstances of the man and woman were taken into account and the woman was not chosen automatically.
On the other hand a Swedish rule (Abrahamsson and Anderson case, see issue 12) which stated that a female candidate who had sufficient qualifications for the post being filled must be appointed in preference to one from the opposite sex was held by the court to be unlawful. Although the rule still allowed the man to be appointed if his qualifications were so much greater than the woman's that it would be a 'breach of objectivity' not to appoint him, the ECJ decided that the better candidate might not be appointed under this system and, anyway, there was no assessment of individuals' situations.
The fact that the court has ruled in favour of some positive action schemes in Member States puts UK legislation under the spotlight. The law which regulates employer behaviour in this area is the Sex Discrimination Act 1975. It has no provisions for positive action except in training and trade union elections, anything else is unlawful.This is beginning to look out of step with the law in many EU countries as well as the amended EC treaty whose article 141 encourages positive action: 'the principle of equal treatment shall not prevent any Member State from ... adopting measures ... in order to make it easier for the under represented sex to pursue a vocational activity or to...compensate for disadvantages in professional careers'. As the pay gap between men and women in the U.K. shows no sign of reducing it may be necessary for this country to consider similar legislation.
In January the court handed down a ruling concerning the working time of commercial vehicle drivers. These vehicles are fitted with 'tachograph' devices which record the hours that the drivers are in the cab. However the issue in this case concerned the time that the drivers spent reaching their coaches. A Nottingham coach company, 'Skills' frequently required its drivers to travel from their homes to its coaches parked at a place remote from the company base. This time was not recorded on the tachograph sheet. The U.K. Vehicles Inspectorate found that the rosters of work did not match the tachograph records and prosecuted the firm and three drivers. Nottingham magistrates court had been unsure how to interpret European law on this subject and so referred the case to the ECJ. The European court held that time spent travelling to take over a vehicle which was not at the employer's base should be recorded as 'during that period he does not freely dispose of his time' and this will 'have a bearing on his driving, in that it will affect his state of tiredness'.
The latest transfer of undertakings (TUPE) case concerns transfer between public authorities, which was held to be an exception to the relevant directive in the 'Henke' case some time ago. A Mr. Collino and Ms. Chiappero worked for the Italian state telecommunications body, ASST, when it was transferred to another public sector owned organisation, Iritel. Six months later the private firm SIP (now called Telecom Italia) absorbed Iritel and refused to take into account the employees' service in ASST when calculating their pay rises and severance pay. They argued that the transfer to Iritel was an 'administrative concession' and not a transfer within the meaning of TUPE. The court did not uphold this view and held that this kind of transfer was not part of the loophole in TUPE established in the 'Henke' case.
The Advocate General has given an opinion on a case brought by the British trade union BECTU to test the UK law implementing the working time directive. The union has about 15,000 members who are either freelance or continually work on short contracts and so do not accrue any annual leave as the law says that there is no holiday entitlement until 13 weeks have been worked for the same employer. The ruling, which quotes the new EU Charter of Fundamental Rights, is that while national law can change conditions for accruing leave it cannot deny the existence of the right itself. As the opinion is usually followed when the court makes its final judgement it seems that the UK regulations will have to be changed.
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