ECJ update May 2010

5 June 2010

Opinion in Pedro Manuel Roca Álvarez v Sesa Start España ETT SA (C-104/09)
6 May 2010, Advocate General Kokott


Background
Spanish law allows employed mothers to take a certain amount of time off work each day for the feeding of an unweaned child. Although originally for breastfeeding, case law had found that the leave could be taken irrespective of whether the mother is actually breastfeeding and the father of the child can take off the time instead of the mother provided he is also an employee. A father’s entitlement to the leave is derived from the mother’s benefit and there is no independent entitlement for employed fathers to take such leave. The applicant father was not entitled to the leave as the child’s mother was self-employed and therefore not personally entitled to the leave. The applicant claimed discrimination on the grounds of sex under Directive 76/207 regarding equal treatment for men and women in employment.

Opinion
Advocate General Kokott concluded that national law which provides an independent right to paid leave only to women is inconsistent with Directive 76/207. She noted that if the national law provided leave merely for breastfeeding then it would fall under the exceptions to the Directive as only women can breastfeed a child. However, Spanish case law had found that breastfeeding was not a condition of the leave and the leave was in effect for the care of a child which could be done by both sexes. The law therefore favours female workers over male workers. It results in female workers having an independent entitlement to leave whereas male workers have only a derived entitlement which ultimately depends on the employment status of the mother. The Advocate General found no sufficient justification for this different treatment and considered that it may have wider implications in the workplace such as a preference to recruit male employees.

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Opinion


Opinion in Ingeniørforeningen i Danmark for Ole Andersen v Region Syddanmark (C-499/08)
6 May 2010, Advocate General Kokott


Background
This case stems from a preliminary reference from the Danish courts. The court refers to the system in Denmark whereby an employer, in dismissing a salaried employee who has been employed for 12, 15 or 18 years, must pay an amount equivalent to one, two or three months’ salary respectively. However this compensation is not to be paid to an employee where, upon departure, they are actually entitled to receive an old-age pension from a pension scheme to which the employer has contributed. After 27 years service for a regional body Mr Andersen was dismissed and a tribunal confirmed he should receive compensation. The regional body refused to pay this compensation on the basis that at 63 years old he had reached retirement
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age and was eligible for the pension scheme. The Danish court asked whether such a regime is precluded due to the prohibition of direct or indirect discrimination on grounds of age contained Directive 2000/78 establishing a general framework for equal treatment in employment and occupation.

Opinion
The Advocate General observed that a severance payment is not necessarily related only to financial support in preparation for the transition to a new employer, it can also constitute recompense and recognition for long-term service to the company. The parties to the case were divided on this issue and she concluded it is for the national judge to rule on this. Where such a payment is deemed to be in recognition of fidelity to the company, it may not be necessary to consider whether, at the time of termination of employment, a worker can prevail himself of the payment of an old-age pension or not. In responding to the Danish court’s questions the Advocate General confirmed that Articles 2 and 6 of Directive 2000/78 preclude the possibility of depriving a worker of their severance pay where, at the time the employment relationship ceases, he is eligible for the pension payment, in so far as the following are not taken into account: whether the employee will take advantage of the pension scheme or continue to seek employment; and, whether they would be financially disadvantaged by drawing on the pension scheme early.

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Opinion


Reference in Hüseyin Balaban v Zelter GmbH (C-86/10)
Lodged 12 February 2010


Background
This is a preliminary reference from the German courts seeking clarification in relation to Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. The court refers to national legislation which relates to the selection of workers to be dismissed on operational grounds. This legislation allows age groups to be formed so as to ensure a balanced selection in the ratio of workers from different age groups comparable to the work force overall. The court asks whether such is precluded under Article 6 of the Directive.

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Reference in Patrick Kelly v National University of Ireland (C-104/10)
Lodged 24 February 2010


Background
The Irish court makes a reference in relation to Directive 97/80 on the burden of proof in cases of discrimination based on sex; 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; and Directive 2002/73 which amends Directive 76/207. The reference relates to a scenario where an applicant for vocational training believes he or she was not granted the training due to discrimination. The court asks whether in this situation the applicant is entitled to access the qualifications of other applicants so as to obtain the necessary facts to determine if discrimination had occurred. The court further asks whether this entitlement is affected by national or EU laws relating to confidentiality.

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