Week 3 Equal Treatment
Introduction
Equal treatment - in the form of equal pay for men and women – has been a core principle of the
EU since its inception in 1957. Originally intended to prevent unfair competition between France,
adhering to the principle of equal pay and the other founding members who did not yet recognise
this, the principle of equal treatment and non-discrimination has been broadened almost beyond
recognition. Although the concept of non-discrimination as such is pretty clear, the sheer mass
of legislation, case law and doctrine makes it hard to draw clear lines and to make statements
which hold true for all grounds of discrimination. As the topic is so broad, the lecture will serve to
show the general system and the development at the example of one or two specific grounds for
discrimination, while during the tutorials, different grounds relating to specific characteristics will
be discussed. Please keep in mind that next week’s lecture on atypical work also has strong
links to the question of equal treatment, e.g. of part-time employees or workers on fixed-term
contracts.
Reading Materials:
Literature
C. Barnard 2012, pp. 275-289, pp. 297-386
Case Law:
Case C-555/07 Kücükdeveci
Ms Kücükdeveci was from the age of 18 by Swedex. Swedex dismissed her by letter of 19
December 2006 and the employer calculated the notice period as if the employee had three
years’ length of service, although she had been in its employment for 10 years. Kücükdeveci
contested her dismissal before the Labour Court in Mönchengladbach. She argued that her
period of notice should have been four months, that period corresponded to 10 years’ service.
So the periods of employment completed before the age of 25 were not to be taken into account
in calculating the notice period. This was, according to Kücükdeveci a discrimination on grounds
of age, contrary to European Union Law, and must be disapplied.
The first preliminary question was about whether or not the provision constituted a difference of
treatment on grounds of age prohibited by directive 2000/78. The court acknowledges the
existence of a principle of non-discrimination on grounds of age which must be regarded as a
general principle of EU law. Directive 2000/78 gives specific expression to that principle. For the
principle of non-discrimination on grounds of age to apply in a case such as that at issue in the
main proceedings, that case must fall within the scope of EU law. It is the general principle of EU
law prohibiting all discrimination on grounds of age, as given expression in directive 2000/78,
which must be the basis of the examination of whether EU law precludes national legislation
such as that at issue in the main proceedings. As regards the question whether the legislation at
issue in the main proceedings contains a difference of treatment, it should be answered
positively. The principle of non discrimination on grounds of age as given expression by directive
2000/78, must be interpreted as precluding national legislation, such as that at issue in the main
proceedings, which provides that periods of employment completed by an employee before
reaching the age of 25 are not taken into account in calculating the notice period of dismissal.
Case C-354/13 Fag og Arbejde, in the name of Kaltoft
On 1 November 1996, the Municipality of Billund hired Mr Kaltoft as a childminder, to take care
of children in his home. Mr Kaltoft performed this function for approximately 15 years. For the
entire period during which Mr Kaltoft was employed by the Municipality of Billund, he was obese
within the meaning of the definition of the WHO. Mr Kaltoft made attempts to lose weight and the
Municipality of Billund provided him financial assistance between January 2008 and January
, 2009 in order to do so. He lost weight, but he regained it. In 2010 he was only taking care of
three children instead of four, the number for which he had received authorisation. On 1
November 2010, Mr Kaltoft was informed by telephone that the Municipality of Billund intended
to dismiss him. On the same day, Mr Kaltoft asked why he was the only childminder to be
dismissed. By letter of 4 November 2010, the Municipality of Billund formally notified Mr Kaltoft
of its intention to dismiss him and requested him to submit any observations in that regard. In
that letter he was told that the planned dismissal was taking place ‘following a specific
assessment on the basis of a decline in the number of children, thus that of the workload, having
severe financial implications on the childminding service and on its organisation’. Mr Kaltoft was
unable to ascertain in specific terms the reasons as to why he was the childminder who was
chosen to be dismissed. He was the only childminder to be dismissed on the ground of an
alleged decline in workload.
The FOA, acting on behalf of Mr Kaltoft, brought an action before the District Court, Kolding,
claiming that during his dismissal, Mr Kaltoft had been discriminated against on the basis of
obesity and that he ought to receive compensation for that discrimination.
The District Court Kolding referred the following questions to the court for a preliminary ruling:
(1) Is it contrary to EU law, as expressed, for example, in Article 6 TEU concerning
fundamental rights, generally or particularly for a public-sector employer to discriminate on
grounds of obesity in the labour market?
(2) If there is an EU prohibition of discrimination on grounds of obesity, is it directly applicable
as between a Danish citizen and his employer, a public authority?
(3) Should the Court find that there is a prohibition under EU law of discrimination on grounds
of obesity in the labour market generally or in particular for public-sector employers, is the
assessment as to whether action has been taken contrary to a potential prohibition of
discrimination on grounds of obesity in that case to be conducted with a shared burden of proof,
with the result that the actual implementation of the prohibition in cases where proof of such
discrimination has been made out requires that the burden of proof be placed on the respondent/
defendant employer …?
(4) Can obesity be deemed to be a disability covered by the protection provided for in Council
Directive 2000/78/EC … and, if so, which criteria will be decisive for the assessment as to
whether a person’s obesity means specifically that that person is protected by the prohibition of
discrimination [on] grounds of disability as laid down in that directive?’
The first question:
No provision of the TEU or TFEU prohibits discrimination on grounds of obesity as such. Neither
Article 10 TFEU nor article 19 TFEU makes reference to obesity. Nor does European Union
secondary legislation lay down a general principle of non-discrimination on grounds of obesity as
regards employment and occupation. In particular, Directive 2000/78 does not mention obesity
as a ground for discrimination. The scope of Directive 2000/78 should not be extended by
analogy beyond the discrimination based on the grounds listed exhaustively in Article 1. So
obesity cannot as such be regarded as a ground in addition to those in relation to which
Directive 2000/78 prohibits discrimination. So answer to first question is that EU law must be
interpreted as not laying down a general principle of non-discrimination on grounds of
obesity as such as regards employment and occupation.
There is no need to answer the second and third question, because of the answer for question 1.
The fourth question was admissible.
