Academic Board Review 2021: Gender and Disability Discrimination, Discrimination General

Marianne Hrdlicka (WU (Vienna University of Economics and Business))

The year 2021 brought us worthwhile case law on the protected grounds of gender and disability. It also included some lessons on anti-discrimination law in general.

Gender

In a Spanish case (C-130/20, YJ – v – Instituto Nacional de la Seguridad Social (INSS)) the ECJ had to decide on the same national legislation granting a pension supplement for mothers that was at issue in a different case (C-450/18) with a different outcome. The question was whether Article 4(1) of Directive 79/7/EEC must be interpreted as precluding legislation which provides that mothers are entitled to a pension maternity supplement in the event of retirement at the statutory age or early retirement on certain grounds, but not if the person concerned voluntarily takes early retirement. The Court stated that ‘discrimination on ground of sex’ can only apply to cases of discrimination between male workers, on the one hand, and female workers, on the other. Hence, a different treatment of women who retire at the statutory age or fulfil certain grounds for early retirement in comparison to women who choose to retire early without a statutory ground cannot qualify as discrimination in the sense of Article 4(1) of Directive 79/7. In another case involving the INSS (C-843/19, INSS – v – BT), the ECJ found ensuring the long-term funding of retirement benefits to be a legitimate aim that can justify indirect discrimination. The provision at issue entailed a minimum pension amount for allowing early retirement – a requirement that potentially precludes more female than male workers.

Fourteen years ago a Greek woman’s application to the police school was rejected because she was too short (EELC 2021/28). After national proceedings, an ECJ case (C-409/16) and again a session with the national court, Ms Kalliri received the answer that the principle of equal treatment between men and women precludes a national provision which makes admission of candidates into the police service subject to a minimum height requirement. A gender-neutral minimum height requirement is indirectly discriminatory and while it did pursue a legitimate aim (namely ensuring physical fitness among police officers), it was neither appropriate nor necessary for achieving the same.

Regarding comparability of income, the ECJ developed the single source test, which qualifies wages to be comparable as long as the unequal pay can be attributed to the same source (C-320/00, Lawrence and others – v – Regent Office Care Ltd). In the more recent Tesco case before the ECJ (C-624/19, K and others – v – Tesco Stores Ltd) the Court confirmed that unequal pay can be compared even when the workers that are compared work in different establishments provided that the source setting the pay is identical. It also held that Article 157 TFEU must be interpreted as having direct effect in proceedings between individuals in the national courts. This ECJ judgment regarding a British case was delivered after Brexit. Although ECJ decisions delivered after the transition period will not be binding on UK courts, the UK-EU Withdrawal Agreement provides that European judgments are binding in cases that were referred before the end of the transition period (31 December 2020). This is the case for Tesco.

Before Tesco, the UK Supreme Court had to decide on the comparability of retail and distribution workers within the supermarket chain Asda (Asda Stores Ltd – v – Brierley and others) (EELC 2021/29). Instead of looking to Article 157 and the ECJ’s single source test, the Supreme Court applied the UK’s Equality Act 2010 and resolved the problem of the lack of male comparators within the same workplace (retail) by asking the hypothetical question whether the (male) comparator in distribution would enjoy the same terms if employed in the (female) claimants’ role. The Court found that only a broad comparison within the same employer is necessary and that the terms would have substantially been the same. With this hurdle overcome, the claimants still have to prove that retail work has the same value as distribution, which will be an interesting point to watch out for.

Yet another British case shows that discrimination is two sides of the same coin and that even a historically privileged group can fall victim to discrimination, namely ‘white, straight men’ (EELC 2021/37). Two employees belonging to that group were dismissed shortly after their CEO announced at a conference the company’s wish to “obliterate” its reputation for being full of “straight, white men” to redeem for their notably high gender pay gap. The Employment Tribunal found the reason for the claimants’ dismissal to be their sex and the dismissal itself therefore directly discriminatory. It goes to show that an injustice even with the cause to compensate for another wrong is still inequitable.

Disability

In 2014, the ECJ expanded on its case law regarding what constitutes a disability. After the Ring and Werge cases the ECJ narrowed down in FOA (C-354/13) under which circumstances obesity can amount to a disability. While there is no general principle to prohibit discrimination on the basis of obesity, the latter can amount to a disability (and can therefore be protected under Directive 2000/78/EC) if it entails a limitation that hinders the full and effective participation in professional life in the long-term. The Danish courts had to decide whether a dismissed childminder in the case at issue met those criteria (EELC 2021/6). It looked at the worker’s ability to perform their job for over a decade and that there was no special accommodation necessary for them to fulfil their tasks. The employee’s obesity was therefore not considered a disability within the meaning of Directive 2000/78.

Four cases concerned reduced-hours employees who did not work full-time to accommodate their special needs and who had been dismissed as part of a cost-saving process (EELC 2021/36). As there was an overrepresentation of reduced-hours employees among those that were let go, the question that occupied the Court was whether this amounted to indirect discrimination on the ground of disability. The Danish High Court upheld the four district court decisions, which found that the statistical data showing overrepresentation in these cases can establish a presumption of discrimination. However, the employer successfully proved that the dismissal was based on operational needs and that the employees dismissed lacked the ability to carry out essential functions.

General

The following four cases contain insights on discrimination cases in general. The first lesson to be learnt is that even when a defendant is willing to pay the full compensation claimed but denies the discrimination every person must have the possibility of obtaining a court ruling that there has been a breach of his or her right to equal treatment (ECJ C-30/19, Diskrimineringsombudsmannen – v – Braathens Regional Aviation). The second case concerned the significance of the Hungarian Equal Treatment Authority’s decisions. The highest judicial authority in Hungary, the Curia, found that while the Equal Treatment Authority making a finding of discrimination makes it probable that a claimant has been disadvantaged, the Authority’s decision has no binding effect on courts (EELC 2021/13). Even if Directive 2000/78 was at issue, this is a principle that will apply to discrimination in general.

The question arose in another case whether direct or indirect discrimination can be found when the distinction is made within a group of people with the same protected characteristic (e.g. disability) without the employees in that group being treated less favourably than the employees who did not have the characteristic (C-16/19, VL – v – Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie). Surprisingly, the ECJ found direct discrimination. The case concerned an employer who chose a certain date after which its workers with disabilities had to submit disability certificates to receive a special allowance, thereby excluding the workers with disabilities who had already submitted disability certificates before that date. As this practice was inextricably linked to the protected characteristic (in this case disability), it constituted direct discrimination.

The last case on general insights regarding anti-discrimination law deals with state officials (EELC 2021/27). The Bulgarian Supreme Administrative Court clarified that even though the Labour Code does not cover persons appointed by state authorities, they still enjoy the protection of the equal treatment principle of Directive 2000/78. Therefore, if a civil servant falls under a category that benefits from special protection under the Labour Code, the provisions on protection against termination will apply to that state official.

Outlook

With 2021 wrapped up, it will be interesting to see what the courts develop in the current year. Covid-19 is a setback especially in gender equality as women with children are statistically more likely to lose their jobs during the pandemic. This might result in a rise of cases on gender discrimination.