Pregnancy Discrimination in the European Union在盟怀孕歧视.pptVIP

Pregnancy Discrimination in the UK and the European Union Dr Katarzyna Gromek-Broc York Law School Direct Discrimination ? Direct Discrimination consists of treating a worker less favourably on grounds of sex or on racial grounds than another worker similarly situated to him/her ? The central test for sex discrimination is a comparison with a similarly situated man ? Essential feature: Use of comparator Is the discrimination on the grounds of pregnancy direct sex discrimination? Domestic Law: UK UK case: Turley v. Allders Stores 1980 (non male comparator: non- discrimination) UK case: Hayes v Malleable working Men’s Club 1985 (pregnant woman compared to a sick man) Need to protect pregnant workers on the EC level 1: Legislation: essential ? Equal Treatment Directive 1976 /amended 2002 ? Pregnant Workers Directive 92/85 helpful ? Parental Leave Directive 96/34 ? Part time Work Directive 99/70 ? Fixed-term Work Directive Parental Leave, Flexible Time 2: Case Law ? Dekker, Webb, Melgar, Tele Danmark, Alabaster, European Level: Law applicable to all Member States European Court of Justice Dutch case and the ECJ: Dekker 1991 (a pregnant woman selected for the post of training instructor in a youth centre) ECJ 1): “a refusal to employ a worker by virtue of her pregnancy amounted to direct sex discrimination contrary to the 1976 Equal Treatment Directive” Dutch case Dekker 1991 ECJ 2) “ A refusal to employ because of the financial consequences of absence connected with pregnancy amounts to direct sex discrimination. Such discrimination cannot be justified by the financial detriment in the case of a pregnant woman suffered by the employer during her maternity leave” EC/EU Law and Domestic Law approaching Pregnancy Contradiction between the domestic and European Law (EC/EU Law prevails) Hayes (UK): Comparative Approach Dekker (NL): Protected Status Approach Solution in the Webb case Webb: UK Case Webb v Cargo (UK 1992, 1995) ECJ case