Equality, diversity and human rights >
Sex discrimination
The European Court of Justice holds that occupational pensions payable under a contracted-out scheme constitute "pay" under Article 119 of the Treaty of Rome, and so must be offered to men and women on equal terms.
In Bilka-Kaufhaus GmbH v Weber von Hartz [1986] IRLR 317 ECJ, the European Court of Justice held that the exclusion of part-time workers from occupational pension schemes contravenes Article 119 of the Treaty of Rome if this exclusion affects significantly more women than men, unless the employer can show that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex.
In Marshall v Southampton and South-West Hampshire Area Health Authority (26.2.86) EOR7E, the European Court of Justice rules that compulsory retirement of men and women at different ages contravenes the EEC Equal Treatment Directive.
In The Home Office v Holmes, the EAT holds that a ban on part-time work can amount to unlawful sex discrimination.
In Page v Freight Hire (Tank Haulage) Ltd [1981] IRLR 13 EAT, the EAT held that the employer was protected by the Sex Discrimination Act 1975, section 51(1) because refusing to allow the employee to transport dimethyl formamide was necessary to comply with the employer's duty under the Health and Safety at Work etc Act 1974 and was not an act of excessive caution.
In Jeremiah v Ministry of Defence [1979] IRLR 436 CA, the Court of Appeal held that "subjecting to detriment" in the context of discrimination by employers, does not mean anything more than "putting under a disadvantage".
In Pointon v The University of Sussex [1979] IRLR 119 CA, the Court of Appeal held that the appellant's claim under the Equal Pay Act could not be sustained because there was no term in her contract of employment that was less favourable than the equivalent term in the contract of the man with whom she was comparing herself.
Rules which lay down standards of dress and appearance for both women and men are unlikely to constitute unlawful discrimination on grounds of sex, even if they impose different requirements on women (such as prohibition on wearing trousers) than on men, based on the difference in sexes. This is the principle which emerges from the recent EAT case of Schmidt v Austicks Bookshops.
In the same way that the EAT's interpretations resuscitated the Equal Pay Act, recent decisions would now appear to be giving the Sex Discrimination Act a new lease of life. In Price v The Civil Service Commission and Steel v The Post Office, the EAT takes the same broad, commonsense approach to the indirect discrimination provisions of the Sex Discrimination Act that it has to the like work provisions of the Equal Pay Act.
Employment law cases: HR and legal information and guidance relating to sex discrimination.