swarb.co.uk - law index
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Discrimination - From: 1990 To: 1990
This page lists 6 cases, and was prepared on 27 May 2018.
Bracebridge Engineering Limited v Darby; EAT 1990 - [1990] IRLR 3
Douglas Harvey Barber v Guardian Royal Exchange Assurance Group (1990) ICR 616; C-262/88; [1990] ECR I-1889; [1991] 1 QB 344; R-262/88; [1990] EUECJ R-262/88
17 May 1990
ECJ
European, Employment, Discrimination
Europa The benefits paid by an employer to a worker on the latter's redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the employment relationship, which facilitates his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment. Such benefits paid in connection with a compulsory redundancy consequently fall within the scope of the second paragraph of Article 119 of the Treaty, whether they are paid under a contract of employment, by virtue of legislative provisions or on a voluntary basis. Unlike the benefits awarded by national statutory social security schemes, retirement pensions paid under private occupational schemes, which are characterized by the fact of being established either by an agreement between workers and employers or by a unilateral decision taken by the employer - whether financed by the employer alone or by both the employer and the workers - which may by law with the employee' s agreement operate in part as a substitute for the statutory scheme and which apply only to workers employed by certain undertakings, constitute consideration paid by the employer to the worker in respect of his employment and consequently fall within the scope of Article 119 of the Treaty. The fact that a private occupational scheme has been set up in the form of a trust and is administered by trustees who are technically independent of the employer does not affect that interpretation of Article 119 since that provision also applies to consideration received indirectly from the employer. 3. Article 119 of the Treaty prohibits any discrimination with regard to pay as between men and women, whatever the system which gives rise to such inequality. Accordingly, it is contrary to that provision to impose an age condition which differs according to sex for the purposes of entitlement to a pension under a private occupational scheme which operates in part as a substitute for the statutory scheme, even if the difference between the pensionable age for men and that for women is based on the one provided for by the national statutory scheme. 4. With regard to equal pay for men and women, genuine transparency, permitting an effective review by the national court, is assured only if the principle of equal pay must be observed in respect of each of the elements of remuneration granted to men and women, and not on a comprehensive basis in respect of all the consideration granted to men and women. 5. Article 119 of the Treaty applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that provision, without national or Community measures being required to define them with greater precision. The national court before which that provision is relied upon must safeguard the rights which it confers on individuals, in particular where a private occupational pension scheme which operates in part as a substitute for the statutory scheme refuses to pay to a man on redundancy an immediate pension such as would be granted in a similar case to a woman. 6. Since the Member States and the circles concerned may, in the light of Directives 79/7 and 86/378, have misunderstood the precise extent of their obligations with regard to the implementation of the principle of equality between men and women for the purposes of the grant of certain retirement benefits, overriding considerations of legal certainty preclude the direct effect of Article 119 of the Treaty from being relied upon in order to claim, under a private occupational pension scheme which operates as a substitute for the statutory scheme, entitlement to a pension with effect from a date prior to that of the judgment upholding, in proceedings for a preliminary ruling, the applicability of that article to pensions of that type, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.
1 Citers
[ Bailii ]
Hampson v Department of Education and Science [1990] ICR 511; [1991] 1 AC 171; [1990] 3 WLR 42; [1990] UKHL 15; [1990] 2 All ER 513; [1990] IRLR 302
7 Jun 1990
HL
Lord Lowry
Employment, Discrimination
A teacher of Hong Kong national origin was refused qualified teacher status in this country because the Secretary of State had not exercised a power conferred on him by the relevant regulations to treat her Hong Kong qualifications as equivalent to the necessary UK qualifications. The refusal was alleged to constitute indirect racial discrimination. The Secretary of State argued, and the majority in the Court of Appeal had held, that the Secretary of State was entitled to rely on s. 41 (1) (b) because the decision complained of was taken under powers conferred by a statutory instrument. Held: A discriminatory act is only saved by the subsection if it is mandated by the statutory provision, or by the arrangements in question.
Race Relations Act 1976 41(1)
1 Cites
1 Citers
[ Bailii ]
James v Eastleigh Borough Council; HL 14-Jun-1990 - [1990] 3 WLR 55; [1990] 2 AC 751; [1990] 2 All ER 607; [1990] ICR 554; [1990] UKHL 6; [1990] IRLR 288
Maria Kowalska v Freie und Hansestadt Hamburg C-33/89; [1990] ECR I-2591; [1990] EUECJ C-33/89
27 Jun 1990
ECJ
European, Discrimination
Europa Compensation paid to a worker on termination of the employment relationship is a form of deferred pay to which the worker is entitled by reason of his employment but which is paid to him on termination of the employment relationship with a view to enabling him to adjust to the new circumstances arising from such termination. It follows that such compensation falls within the definition of pay for the purposes of Article 119 of the Treaty. Article 119 of the EEC Treaty precludes the application of a clause in a collective wage agreement applying to the national public service under which the employers may exclude part-time employees from the payment of a severance grant when in fact a considerably lower percentage of men than of women work part-time, unless the employer shows that the exclusion is based on objectively justified factors unrelated to any discrimination on grounds of sex. Where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage, whether men or women, must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty into national law, the only valid point of reference.
1 Citers
[ Bailii ]
Dekker v Stichting Vormingscentrum Voor Jong Volwassenen; ECJ 8-Nov-1990 - C-177/88; R-177/88; [1990] EUECJ R-177/88