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Equal treatment: Exclusion of female cleaners from permanent posts discriminatory

This report relates to 1 case(s)

Key points

In Nikoloudi v Organismos Tilepikinonion Ellados AE 10.03.05, C-196/02, the European Court of Justice holds:

  • While creating categories of workers composed of persons of a single sex does not itself constitute direct discrimination, less unfavourable treatment by reference to that category will amount to direct discrimination.
  • Rules that exclude a higher percentage of female than male part-time workers from a category of worker would also, in principle, constitute indirect discrimination, unless they could be objectively justified by factors unrelated to discrimination on the grounds of sex. It is for the national courts to determine whether objective justification is made out.
  • The total exclusion of periods of part-time work when calculating length of service by the employer, does constitute indirect discrimination, where such an exclusion affects a higher percentage of women than men, unless it can be objectively justified by factors unrelated to any discrimination on the grounds of sex.
  • Where the proportional counting of part-time work (when calculating length of service) affects a higher percentage of women than men, it will amount to indirect discrimination, unless it can be objectively justified by factors that are unrelated to discrimination on grounds of sex. The objectivity of the factors depends on the aim pursued by calculating the length of service. While the assessment of the objectivity of the factors is a matter for the national court, if the reason for calculating length of service is to recognise accumulated experience, the court should consider the relationship between the nature of the duties carried out and the experience gained from performing them over a certain number of hours of work.