Keywords
Summary

Keywords

1 Social policy - Men and women - Equal pay - Pay - Definition - Compensation for unfair dismissal - Covered

(EC Treaty, Art. 119)

2 Social policy - Men and women - Equal pay - Article 119 of the Treaty - Equal treatment as regards access to employment and working conditions - Directive 76/207 - Scope of Article 119 and Directive 76/207 respectively

(EC Treaty, Art. 119; Council Directive 76/207)

3 Social policy - Men and women - Equal pay - National measure entailing indirect discrimination - Appraisal by the national courts - Legal test - For the Member State to prove objective justification

(EC Treaty, Art. 119)

Summary

1 Compensation awarded pursuant to a judicial decision for infringement of the right not to be unfairly dismissed constitutes pay within the meaning of Article 119 of the Treaty. Such compensation is designed in particular to give the employee what he would have earned if the employer had not unlawfully terminated the employment relationship.

It follows that compensation for unfair dismissal is paid to the employee by reason of his employment, which would have continued but for the unfair dismissal. It therefore falls within the definition of pay for the purposes of Article 119 of the Treaty.

2 The conditions determining whether an employee is entitled, where he has been unfairly dismissed, to obtain compensation fall within the scope of Article 119 of the Treaty. However, the conditions determining whether an employee is entitled, where he has been unfairly dismissed, to obtain reinstatement or re-engagement fall within the scope of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

3 In order to establish whether a rule adopted by a Member State, to the effect that protection against unfair dismissal applies only to employees who have been continuously employed for a minimum period of two years, has disparate effect as between men and women to such a degree as to amount to indirect discrimination for the purposes of Article 119 of the Treaty, the national court - which must determine, taking into account all the material legal and factual circumstances, the point in time at which the legality of a rule is to be assessed - must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that measure. If that is the case, there is indirect sex discrimination, unless that measure is justified by objective factors unrelated to any discrimination based on sex.

In that connection, it is for the Member State, as the author of the allegedly discriminatory rule, to show that the said rule reflects a legitimate aim of its social policy, that that aim is unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim. Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed rule is unrelated to any discrimination based on sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen were suitable for achieving that aim.