Laura Calafà, University of Verona
NFP Italy, FRANET
Rome, 8th April 2014
From the fact to labour law in a
historical/evolutive
perspective:
main cases
The work program includes
summaries and case studies
Rhetorical Introduction
individual / collective work / over the work
Test Achats v. Médiation Sociale
The cases, national law and EU law,
the Charter of Fundamental Rights
Selection of case
from Defrenne (1971) to Accept (2013):
Patterns of interpretation
The transformation of the risk factors (sex or
gender) and research the extent of the risk factor: a
comparison with the meta-model
The remedies and the enforcement
The scope of the equality directives
Employment policies and the age: the discretion of
Member States (occupational requirements)
The singles risk factors
Anti-Discrimination Law and Equality principle
A preliminary definition of antidiscrimination law:
The corpus of provisions intended, through
duties expressed as prohibitions, to prevent
the fate of human beings from being
determined by natural or ascribed social
statuses (sex, race, ethnic origin and so on)
and, at the same time, through active duties, to
ensure that different subjective identities are all
recognised and protected as equals (Barbera
2008)
The new frontiers of the principle of equality in
European Union law Treaty
Primary Law
Treaty establishing
the EEC
1957 (Art. 119)
2000 Treaty
of Nice and
Charter of
Fundamental
Rights
Treaty of
Maastricht
1992 (1993)
1971 - ECJ
Defrenne I
Draft
Constitutional
Treaty Rome,
29 October
2004
Treaty of
Amsterdam
1997 (1999)
2008 - ECJ Treaty of Lisbon 2009
(Art. 19 and
1996 – ECJ Coleman
Art. 157 TFEU)
P. /S.
The constitutional interaction at European and national level in
the field of equal treatment: the binding nature of the Nice Charter
and the updated Treaty and the use of the general principles of
European Union law
Rules, interpretation
The equal treatment in the EU dimension
The principle and the duties expressed as prohibitions
(combating discrimination on the grounds of …)
Criterion for judgment on the law (it must be ascertained
whether the legislature has treated similar cases
differently or different situations in the same way:
evaluative conception of equality)
The comparison that must be made from
EU primary law or with ...
-the general principles of European Union law
- Primary Law (Treaty establishing there shall
be no direct or indirect discrimination on the
grounds of nationality, sex and others … art.
12 TEU, art. 19/157 TFEU)
- and, from december 2009, CHARTER OF
FUNDAMENTAL
RIGHTS
OF
THE
EUROPEAN UNION
Equality as a goal of a
prescription
(to
be
distinguished from equality
which property of the formal
structure of the rule that is the
subject of the judgment) ...
Connection between equality and fundamental
rights
Article 21
Non-discrimination
1. Any discrimination based on any ground such as
sex, race, colour, ethnic or social origin, genetic
features, language, religion or belief, political or any
other opinion, membership of a national minority,
property, birth, disability, age or sexual orientation shall
be prohibited.
2. Within the scope of application of the Treaty
establishing the European Community and of the
Treaty on European Union, and without prejudice to
the special provisions of those Treaties, any
discrimination on grounds of nationality shall be
prohibited.
A necessary distinction …
Prohibitions related to subjective factors:
they are recognized by. 21 of the Charter
Prohibitions related to the directives on
labor standards have been defined as "the
principles of Community social law" (ECJ
Del Cerro Alonso), although from the point
of view of the function, the Court treats
them the same way ...
All prohibitions are due to the
evaluative conception of equality,
their definition is objective in law
The check carried out by the antidiscrimination law, depends on
the notions and the scope of the
relevant directives
From the rules to the fact
SEX (art. 156 TFEU) e NATIONALITY ( art. 45 TFEU
only for workers)
have horizontal direct effect: the non discrimination
principles may be relied upon before the national courts
of which will be required to set aside any provision of
national law to comply, in relation to both the state and
private parties
Art. 19 TFEU grounds other than sex/gender: the
complexity of the role played by the provision
conferring legal basis in the Treaty
Primary Treaty law:
Art. 141 TEC, today Art.157 TFEU – Nice Charter of
Fundamental Rights
(Arts. 20-23)
Secondary Community law:
Dir. 75/117 – Dir. 76/207 – Dir. 98/70 – 86/378/EC and thus
also in their amended forms as Dir. 1996/97/EC – Dir.
2002/73 – Dir. 2004/113
Dir. 2006/54 (framework directive)
also known as the recast directive, precisely because its function is to
harmonise the provisions contained in the earlier directives dedicated to equal
treatment of men and women as regards access to employment, training and
promotion, in occupational social security schemes, in the application of the
principle of equal pay for men and women and the rules on the burden of proof
in cases of discrimination on grounds of sex and also in the light of the caselaw of the ECJ
Once upon a time … ?
comparison with the meta-model (sex or gender)
and extension of the grounds on which
discrimination is prohibited within European Union
law
SEX or GENDER and the EU system before P v. S
Defrenne I, II e III ... direct effect of the art. 119 TEC
Consolidation meta-model by
- Indirect discrimination
-Burden of proof distribution
-Anti-discrimination but for method for maternity and pregnancy
L‘affermazione dell‘utilizzo del diritto antidiscriminatorio but for per
la gravidanza e la maternità
-The problems of the legitimacy of affirmative action as exceptions
to the functioning of equal treatment in employment and the
construction of the category of the under-represented sex
The sex equality from Defrenne to Test Achats in EU
Prohibited grounds other than sex/gender
Primary law:
Article 13 TEC, modified by Amsterdam and Nice in 2000,
and now Article 19 TFEU
The 2000 Charter of Fundamental Rights (with the binding
nature bestowed on it by Lisbon in December 2007 and
with its entry into force in December 2009)
Secondary law:
Dir. 2000/43 and Dir. 2000/78
With the effect of suspending the procedure of adopting
directives in other specific fields (otherwise known as the
“horizontal directive”, necessary to cover the scope of
each of the various provisions referred to above)
After P v. S … others grounds other
than sex/gender
The forms of discrimination and harassment over
eleven years of the Court’s case-law (... roughly one
judgment per year, but on the increase!)
The trend shown by a number of landmark judgments indicating the scope
and practical operation of the instruments defined above:
a)The age factor from Mangold to Kücükdeveci: the emerging factor
b)Sexual orientation from the cases of P and Grant through to Römer and
Accept (and including the Tadao Maruko case): civil rights and antidiscrimination law
c)The disability factor and the complicated relationship between Chacon
Navas and Coleman
d) The uniqueness of the Feryn case (with recent Galina Maister)
e) The sustainable (and apparent) ease of invoking arguments of a person’s
religion and belief … as things stand at present!
The structure, scope (as regards
objects and subjects), equality
institutions and positive actions
are the cardinal concepts of these
(quasi-) twin directives. Creation
of uniformity in the instruments
for intervening in the field of antidiscrimination law.
Direct discrimination – the legal definition
Direct discrimination exists where one
person is treated less favourably [on
grounds of race or ethnic origin, age,
disability, sexual orientation or personal
religion or belief] than another is, has
been or would be treated in a
comparable situation.
Indirect discrimination – the legal definition
Indirect discrimination is taken to occur
where an apparently neutral provision,
criterion or practice would put persons
having a particular [race or ethnic origin,
age,
disability,
sexual
orientation,
personal religion or belief] at a particular
disadvantage compared with other
persons unless that provision, criterion
or practice is objectively justified by a
legitimate aim and the means of
achieving that aim are appropriate and
necessary.
Patterns of interpretation
The three phases in arriving at
determination of an act of discrimination:
1.The apparently
practice
neutral
criterion
or
2.The position of particular disadvantage
(of the group … compared with other
persons)
3.The
appraisal
of
the
objective
justification of the criterion or practice
[legitimate aim and use of appropriate and
necessary means: Art. 2(2)(b)]
EXCEPTIONS OR THE AREAS IN WHICH THE
PROHIBITIONS DO NOT OPERATE
(ART. 4 OCCUPATIONAL REQUIREMENTS)
COMMON EXCLUSION: “Notwithstanding Article 2 (1)
and (2) (direct and indirect discrimination), the Member
States may provide that a difference of treatment
based on a characteristic related to [race or ethnic
origin, age, disability, sexual orientation or personal or
religious beliefs] shall not constitute discrimination
where, by reason of the nature of the particular
occupational activities concerned or the context in
which they are carried out, such a characteristic
constitutes a genuine and determining occupational
requirement, provided that the objective is legitimate
and the requirement is proportionate”.
SPECIAL EXCEPTIONS IN THE FRAMEWORK
DIRECTIVE
Exceptions or areas of non-operation of the prohibitions
on discrimination on grounds of age and disability
as regards the armed forces (Art. 3(4)) Exceptions
or areas of non-operation of the prohibitions on
discrimination on grounds solely of disability (Art. 5
and Art. 7(2)) Exceptions or areas of non-operation of
the prohibitions on discrimination on grounds of age
as regards employment policy, labour-market and
vocational-training objectives, retirement and
invalidity benefits (Art. 6(1) and (2)), with this final
provision being reinforced by the wording of Art. 3(3).
Exceptions linked to the prohibited grounds of a
person’s religion or belief in organisations the
ethos of which is based on religion or belief (Art.
4(2))
Harassment – the legislative definition
Harassment shall be deemed to be a form of
discrimination within the meaning of
paragraph 1, when unwanted conduct
related to any of the grounds of [race or
ethnic origin, age, disability, sexual
orientation or a person’s religion or belief]
takes place with the purpose or effect of
violating the dignity of a person and of
creating an intimidating, hostile, degrading,
humiliating or offensive environment. In this
context, the concept of harassment may be
defined in accordance with the national laws
and practices of the Member States.
Patterns of interpretation Acts of harassment,
sexual harassment and discrimination: dignity and
equal treatment and the judgments based on
comparisons … problems of a doctrinal nature?
Blurring of the concept of discrimination…
Reference to the Coleman and Feryn judgments
Discrimination by association or
transferred
discrimination
potential discrimination
and
Coleman Case (2008)
Council Directive 2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment and
occupation, and, in particular, Articles 1 and 2(1) and (2)(a) thereof,
must be interpreted as meaning that the prohibition of direct
discrimination laid down by those provisions is not limited only to
people who are themselves disabled. Where an employer treats an
employee who is not himself disabled less favourably than another
employee is, has been or would be treated in a comparable
situation, and it is established that the less favourable treatment of
that employee is based on the disability of his child, whose care is
provided primarily by that employee, such treatment is contrary to
the prohibition of direct discrimination laid down by Article 2(2)(a).
The protection of workers in the functioning of
the principle of non-discrimination: rules,
limits and potentialities
CASE STUDY 1: The Trade Union membership
discrimination
CASE STUDY 2: Part-time work
Case 1
The workers enrolled in Fiom - and only
workers who belong to Fiom or still
enrolled in the Fiom - not employed in
the new factory factory Pomigliano Italy
(FIP) are discriminated against on the
basis of law (national) regulations?
The premise of each reasoning: there is
discrimination in the case dealt with by the Courts
of Rome?
The question of protected
good: are equality or freedom
of association (with exclusion of
procedural issues) protected?
Freedom of association protected by (in Italy) Art. 39
Constitution, the violation of the right asserted is
protected from violation of the workers equal
treatment (members and non-members or no longer
enrolled in Fiom)
The judgment of comparison, the
unfavorable treatment, the use of the
statistical test
the reference to the statistics must be
understood in its less technical and more
common probability, regardless of a rigid
scientific rigor …
The defensive strategy of the employer
The allegations of discrimination should be taken seriously
in the process. Fiat (the employer) uses three different
types of arguments: 1) I do not know the members Fiom
and therefore can not discriminate, and 2) the criteria for
selection of personnel are objective and, therefore, rightful
and therefore not discriminatory, and finally, 3) the defense
look to assert the existence of an exception to
discrimination under dir. 2000/78.
The theory of the legitimacy of The Trade Union
membership discrimination
The employer says: “"The rejection of the negotiation and, then, of
the contents of the collective agreement (…) is absolutely
incompatible with occupational activity that must take place in an
aggregate context, coordinated and governed by accepted rules and
unionized necessarily the same for everyone: with the requirement
that is less essential and crucial for the conduct of such activities.
The juge says: The prohibitions of discrimination based on union are
tools of affirmation of the freedom of association and democracy in
the company because "workers are required to comply with the rules
applicable under the company they work for, but obviously can not
be expected that the share if you do not accept to prejudice their
personal beliefs and trade union beliefs .
The trade union membership is included in the risk factor
belief?
The answer depends on the use in the process of fundamental
rights included in the Charter of rights
The answer does not depend on the choices made by some EU
countries to separate belief from convictions union
The Court using the systematic interpretation of art. 19 TFEU
(formerly Art. 13 TEC), the ILO Convention relevant to the specific
matter, the Charter of Fundamental Rights becomes binding art. 6
TEU concludes that "can certainly be considered that the Directive
2000/78/EC, protecting personal beliefs against discrimination, gave
input into Community law the formal recognition of the cd.
ideological freedom whose broad content material can also be
established by reference to art. 6 TEU and, therefore, the European
Convention of Human Rights. "
Recruitment of 19 members Fiom and
dismissal of 19 workers already
employed (not registered Fiom)
Retaliation?
The use of comparative judgment in trade
unions: pro e contro …
A focus required: retaliation
and anti-discrimination law
...
In Italy: the recent dismissal questions
Special redundancies, dismissal and the
discriminatory dismissal
The juge and the retaliation
The concept of discriminatory dismissal, as set out in art.
4 l. n. 604 of 1966, art. 15 l. n. 300 of 1970, art. 3 l. n.
108 of 1990, is susceptible to wide interpretation: the
area of the individual grounds prohibited includes
dismissal for retaliation or reprisal, which is the employer
unjust and arbitrary reaction to undesirable behaviors,
where the latter represents the only reason of the
decision of expulsion.
Dismissal, retaliation:
key distinctions
Reasons typed (eg
union reasons)
=
Discriminatory
dismissal
Reasons
untyped
=
Unlawful dismissal,
non-discriminatory
but
Special Training
Dismissal due to the refusal to switch from part-time to fulltime (Trib. Bologna 19/11/12)
Dismissal following a request for
removal of pornographic calendar (Trib. Torino 19/12/11)
Dismissal notice as a result of sexual violence (Trib. Latina,
20/9/11)
Dismissal of her daughter in front of the action brought from his
father against the employer (Cass. Civ. 8/8/11, n. 6282)
Dismissal due to rigid positions and controversies of the
worker, communicated to the press (Cass. 3/5/97, n. 3837)
Dismissal of union leader (by the union) (Cass. 25/7/08, n.
20500)
Dismissal on grounds participation in a strike (based on nonexistent organizational reasons: Trib. Milano, 7/10/04)
The other side of the anti-discrimination
law ... the (technique of) procedural
protection of non-standard workers
The anti-discrimination protection is used as a
"counterweight" to the relaxation of the conditions of
work and the types of contracts as a means to control
the effects of segmentation of the labor market and
diversification of the treatments produced by
deregulation / re-adjustment of these years, according
to a process (of a more general nature) which sees
the traditional techniques of control of a substantial
nature (…) to yield procedural techniques (based on
rules that establish rights to a certain decision
procedure proper, transparent, reasoned, without the
guarantee of a certain outcome ... (Barbera 2007)
Dir 97/81 on part-time work, Dir 99/70 on fixedterm employment and Dir 2008/104 on the
temporary work
Choosing to focus on part-time soliciting the
attention on the process of revision of part-time
work of the Public Administration workers
Valorisation of voluntary
principle?
Request for a preliminary ruling from the Tribunale di Trento (Italy)
lodged on 25 April 2013 – Teresa Mascellani v Ministero della Giustizia
(Case C-221/13) Language of the case: Italian Referring court Tribunale di
Trento Parties to the main proceedings Applicant: Teresa Mascellani
Defendant: Ministero della Giustizia
Questions referred
In so far as it provides that ‘[t]he refusal by a worker to be
transferred from full-time to part-time work or vice-versa should not
in itself constitute a valid reason for termination of employment,
without prejudice to the possibility, under national laws, collective
agreements and practice, of termination for other reasons such as
may arise from the operational requirements of the establishment
concerned’, must Clause 5.2 of the Agreement implemented by
Directive 97/81/EC 1 be construed as meaning that provision may
not be made in the legislation of Member States for employers to
be able to convert a part-time employment relationship into a fulltime relationship even where the employee does not consent?
Does Directive 97/81/EC preclude a provision of national law (such
as Article 16 of Italian Law No 183 of 4 November 2010) under
which employers may convert a part-time employment relationship
into a full-time employment relationship even where the employee
does not consent?
Case Study 2
Ms. Smith is an employee of the Ministry of Justice with hours of part-time vertical at
the Court of Venice. Part-time work is 50% with time divided over 3 days a week. By
decision of the Director of Administration as part-time is revoked since 03.21.2011,
issued prior ministerial order dated February 8, 2011, n. 20384.
(Part-time work provisions)
… in accordance with the principles of fairness and good faith, may be re-evaluated
measures granting the transformation of employment from full-time to part-time
already 'adopted before the date of entry into force of the aforementioned DecreeLaw no. 112 of 2008, converted with amendments by Law no. 133 of 2008.
Ms Smith is speaking to you for a consultation. Asks in particular, what strategy
should be adopted in respect of the act issued by your employer (the public
administration)
The role of the national courts
and the frontier of antidiscrimination law
-Request
rulings
for
preliminary
-Consistent interpretation
-Disapplication
application)
(not
Thank you for your
attention!