This article needs additional citations for verification .(August 2021) |
Bilka-Kaufhaus GmbH v Weber von Hartz | |
---|---|
![]() | |
Full case name | Bilka-Kaufhaus GmbH v Weber von Hartz |
ECLI | ECLI:EU:C:1986:204 |
Language of proceedings | German |
Nationality of parties | German |
Court composition | |
Advocate General Marco Darmon | |
Keywords | |
Indirect sex discrimination, pension |
Bilka-Kaufhaus GmbH v Weber von Hartz (1986) C-170/84, ECLI:EU:C:1986:204, is an EU labour law case, that sets out the test for objective justification for indirect discrimination.
Karin Weber von Hartz was a part-time worker, who had worked for 15 years at Bilka-Kaufhaus. She was refused pension payments under her contract with her employer Bilka-Kaufhaus, which required her to have worked full time for 15 years. She had a German state pension, on top, however. She claimed this was sex discrimination under the Treaty establishing the European Economic Community (TEEC) article 119 (now TFEU art 157). She alleged that women work more part-time, so they are at a disadvantage. Bilka-Kaufhaus argued it was justified in excluding part-time workers because there are higher administrative costs for giving pensions to part-time workers, given the work they do. They also said 81.3 per cent of all occupational pensions were paid to women, even though only 72% of employees were women, so the scheme was unrelated to sex discrimination.
Weber started proceedings are a German Labour Court (German : Arbeitsgericht). The decision was appealed to the Federal Labour Court (German : Bundesarbeitsgericht), which decided to stay proceedings and ask for a preliminary ruling to the European Court of Justice (ECJ).
The ECJ considered first whether pension payments were pay and held they were. They then asked whether there was potentially indirect discrimination, held that there could be, but that it was up to the member state court to determine the facts. There could be objective justification if the employer showed the disparate treatment was based on a "real need" of the business. It said the following:
30. if the undertaking is able to show that its pay practice may be explained by objectively justified factors unrelated to any discrimination on grounds of sex there is no breach of article 119...
[...]
36. It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker’s sex but in fact affects more women than men may be regarded as objectively justified economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of article 119.
United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK can rely upon a minimum set of employment rights, which are found in Acts of Parliament, Regulations, common law and equity. This includes the right to a minimum wage of £9.50 for over-23-year-olds from April 2022 under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995.
The Equal Pay Act 1970 was an Act of the Parliament of the United Kingdom that prohibited any less favourable treatment between men and women in terms of pay and conditions of employment. The Act was proposed by the then Labour government, and was based on the Equal Pay Act of 1963 of the United States. It has now been mostly superseded by Part 5, chapter 3! of the Equality Act 2010.
United Kingdom employment equality law is a body of law which legislates against prejudice-based actions in the workplace. As an integral part of UK labour law it is unlawful to discriminate against a person because they have one of the "protected characteristics", which are, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, pregnancy and maternity, and sexual orientation. The primary legislation is the Equality Act 2010, which outlaws discrimination in access to education, public services, private goods and services, transport or premises in addition to employment. This follows three major European Union Directives, and is supplement by other Acts like the Protection from Harassment Act 1997. Furthermore, discrimination on the grounds of work status, as a part-time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union, or with advice from a solicitor, ACAS or the Citizens Advice Bureau a claim may be brought in an employment tribunal. The Equality Act 2006 established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.
Allonby v Accrington & Rossendale College (2004) C-256/01 is a European Union law case concerning the right of men and women to equal pay for work of equal value under Article 141 of the Treaty of the European Community.
European labour law regulates basic transnational standards of employment and partnership at work in the European Union and countries adhering to the European Convention on Human Rights. In setting regulatory floors to competition for job-creating investment within the Union, and in promoting a degree of employee consultation in the workplace, European labour law is viewed as a pillar of the "European social model". Despite wide variation in employment protection and related welfare provision between member states, a contrast is typically drawn with conditions in the United States.
O'Hanlon v Revenue and Customs Commissioners [2007] EWCA Civ 283 is a UK labour law case concerning disability discrimination.
Defrenne v Sabena (1976) Case 43/75 is a foundational European Union law case, concerning direct effect and the European Social Charter in the European Union. It held that the EU:
is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their people...
R (Seymour-Smith) v Secretary of State for Employment [2000] UKHL 12 and (1999) C-167/97 is a landmark case in United Kingdom labour law and European labour law on the qualifying period of work before an employee accrues unfair dismissal rights. It was held by the House of Lords and the European Court of Justice that a two-year qualifying period had a disparate impact on women given that significantly fewer women worked long enough to be protected by the unfair dismissal law, but that the government could, at that point in the 1990s, succeed in an objective justification of increasing recruitment by employers.
Mangold v Helm (2005) C-144/04 was a case before the European Court of Justice (ECJ) about age discrimination in employment.
Rainey v Greater Glasgow Health Board [1987] IRLR 26 is a UK labour law case concerning the justifications for unequal pay.
Enderby v Frenchay Health Authority (1992) C-127/92 is an EU labour law, relevant for UK labour law, that concerns the justification test for unequal pay between men and women.
Rinner-Kühn v FWW Spezial-Gebaudereinigung GmbH & Co KG (1989) C-171/88 is an EU labour law case, concerning indirect discrimination and objective justification.
Barber v Guardian Royal Exchange Assurance Group (1990) C-262/88 is an EU labour law and UK labour law case concerning sex discrimination in pensions.
Nimz v Freie und Hansestadt Hamburg (1991) C-184/89 is an EU labour law case, which held that a justification that part-time employees could be paid less, since full-time employees could acquire skills quicker, was doubtful.
Kutz-Bauer v Freie und Hansestadt Hamburg [2003] ECR I-02741 (2002) C-187/00 is an EU labour law case, which held that in justifying discrimination, budgetary considerations alone cannot be decisive.
Kücükdeveci v Swedex GmbH & Co KG (2010) C-555/07 is a leading EU labour law case, which held that there is a general principle of law in all European Union member states, against discrimination, and in favour of equal treatment.
Hampson v Department of Education and Science [1989] ICR 179 is a UK labour law case, concerning the test for justification of discrimination.
Macarthys Ltd v Smith (1980) Case 129/79 is an EU law, UK constitutional law and UK labour law case, concerning the construction of a sex discrimination statute, and its compatibility with European treaties, now in the European Union.
Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 is a UK labour law case, concerning discrimination under what is now the Equality Act 2010.
Roman Angonese v Cassa di Risparmio di Bolzano S.p.A. (2000) C-281/98 is an EU law case, concerning the free movement of workers in the European Union.