BULLETIN
LEGAL ISSUES IN
GENDER EQUALITY
N° 1/2006
Bulletin of the Commission's Network of legal experts
in the fields of employment, social affairs and equality
between men and women
Employment & Social Affairs
Theme
European Commission
Equality between women and men

N° 1 / 2006
Directorate-General for Employment, Social Affairs and Equal Opportunities
Unit EMPL/G/2
Manuscript completed in January 2006
The contents of this document do not necessarily reflect the opinion or position of the European
Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities. Neither the
European Commission nor any person acting on its behalf is responsible for the use which might be
made of the information in this publication.
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Production: Sacha Prechal and This Bulletin is available online and can be
Annick Masselot obtained from the following website:
http://europa.eu.int/comm/employment_social/
gender_equality/legislation/index_en.html.
The information contained in this Bulletin reflects, as far as possible, the state of affairs on
31 December 2005
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CONTENTS
Page
Introduction 7
State of affairs in EC policy instruments related to gender equality issues 9
State of affairs in equality cases pending before the Court of Justice 10
1. Cases for which an opinion has been delivered 10
2. Pending cases 10
12
News from the Member States
AUSTRIA 12
Anna Sporrer
BELGIUM 14
Jean Jacqmain
BULGARIA 15
Genoveva Tisheva
CYPRUS 17
Lia Georgiades
CZECH REPUBLIC 19
Kristina Koldinská
DENMARK 20
Ruth Nielsen
ESTONIA 21
Anneli Albi
FINLAND 22
Kevät Nousiainen
FRANCE 24
Hélène Masse-Dessen
GERMANY 26
Dagmar Schiek
GREECE 27
Sophia Spiliotopoulos
HUNGARY 29
Csilla Kollonay Lehoczky
ICELAND 30
Herdís Thorgeirsdottir
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IRELAND 32
Frances Meenan
ITALY 34
Gisella De Simone and Anna Rivara
LATVIA 36
Lîga Biksiniece
LIECHTENSTEIN 37
Nicole Mathé
LITHUANIA 38
Tomas Davulis
LUXEMBOURG 39
Viviane Ecker
MALTA 40
Peter Xuereb
THE NETHERLANDS 42
Ina Sjerps
NORWAY 43
Helga Aune
POLAND 45
Eleonora Zielińska
PORTUGAL 46
Maria Do Rosário Palma Ramalho
ROMANIA 48
Roxana Teşiu
SLOVAKIA 49
Zuzana Magurová
SLOVANIA 50
Tanja Koderman
SPAIN 52
Adriana Lozada Hernández
SWEDEN 54
Ann Numhauser-Henning
UNITED KINGDOM 55
Christopher McCrudden
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Introduction – some general trends
This Bulletin highlights the latest developments in the field of gender equality at EU and national
level. At Community level, the Recast Directive is in the process of being adopted. This Directive
aims to clarify and simplify sex equality rights. The Commission is also working on a
Communication establishing a ‘Roadmap for Gender Equality’. This Communication will be
adopted at the beginning of 2006 and is a follow-up to the ‘Framework Strategy on Gender
Equality (2001-2005)’. The Roadmap sets out the Commission’s actions and policies in the field
of gender equality. It will also identify strategic objectives in other policy areas of the EU so as to
promote the principle of gender equality.
At national level, there has been increased activity in the field of gender equality, in particular in
the context of parental rights and the reconciliation of family life with work. Indeed, the national
experts highlight a great number of measures that have been adopted in the Member States that
bring the issues of parental leave and the work-life balance to the fore.
In Portugal, for example, the newly elected government has strengthened its commitment
regarding the balanced appointment of tasks between men and women. In the same vein, in
Sweden an investigation committee has recently recommended the extension of a non-
transferable period of paid parental leave. Other Member States have also adopted additional
legislative measures that deal with the balance between family life and work. Finland, for
example, has introduced a parental insurance scheme, whilst in Poland financial support to
parents has been expanded. Ireland and Malta have contributed to the readjustment of the work-
life balance through provisions on child care.
The adoption of measures that aim to reconcile family life and work, however, does not always
guarantee the equal distribution of family responsibilities between both parents. Indeed, as has
been pointed out by the French expert, a plethora of paid parental leaves that are available to
both parents may encourage in particular women to stay at home. Accordingly, some experts
have stressed the need for the adoption of national measures that increase the sharing by fathers
of child care responsibilities. In Lithuania, for example, fathers have recently been given the right
to paid paternity leave, whilst Germany has introduced a new family allowance that should
encourage fathers to make use of their parental leave rights.
In addition, some experts further highlight the adoption of other policy incentives to encourage
fathers to make use of measures that promote their involvement as parents. In Liechtenstein, for
example, the organisation of an annual father’s day at work is intended to strengthen the
relationship between fathers and their children, whilst in Slovenia and Estonia a set of initiatives
have been taken to overcome gender-specific stereotypes.
The situation as regards pregnancy and maternity rights is also gradually improving at
Community and national level. In a recent Opinion in case C-296/04, Sarkatzis Herrero, Advocate
General Stix-Hackl has reaffirmed in part the settled case-law as laid down in case C-284/02,
Sass, regarding the commencement of the protection guaranteed by maternity rights. The AG
considered that a worker on maternity leave who has obtained a new post, but who has not yet
begun work in this new post, is still entitled to all the rights that are attached to this post from the
start of the appointment.
Protection of pregnancy and maternity rights has equally been strengthened in the national legal
systems of the Member States (Belgium, Latvia, the Czech Republic and Sweden).
Nevertheless, discrimination still occurs in practice and particularly concerning the right to return
to work (Norway and Iceland), unfair dismissal (Hungary and Luxembourg) and restrictive
conditions for self-employed pregnant women who apply for a healthcare scheme (the
Netherlands).
Progress has also been made in the Member States in relation to the implementation of Directive
2002/73/EC which was due on 5 October 2005. Although there are still a few legal systems that
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do not entirely comply with EC law, several experts have underlined national steps in order to
promote the full implementation of the Directive. In Denmark and Iceland, for example, a Bill is
on the way regarding the disclosure of gender-specific pay data whilst changes to the
competences and structure of national equality bodies are put into place in Latvia, United
Kingdom, Norway and Poland.
Finally, national action has further been intensified in the field of domestic violence. In Austria,
for example, two NGOs have filed a communication before the UN Committee of all Forms of
Discrimination Against Women regarding domestic abuse. In Greece and Malta a Bill countering
domestic violence is currently pending before the national Parliament.
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State of affairs in EC policy instruments related to gender
equality issues
The most recent Official Journal of the European Communities can be found on the following
web-site: http://europa.eu.int/eur-lex/en/oj/index-list.html
See generally PreLex, the database on inter-institutional procedures:
http://europa.eu.int/prelex/apcnet.cfm?CL=en
• Proposal for a Regulation of the European Parliament and of the Council of 8 March
2005 establishing a European Institute for Gender Equality. COM (2005) 81
See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=192619
• Proposal for a Directive of the European Parliament and the Council on working
conditions for temporary work. COM (2002) 149 final — 2002/0072(COD), OJ 27.08.2002
C/203E/1.
See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=172619
See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=186510#364993
• Proposal for a Directive of the European Parliament and of the Council on the
implementation of the principle of equal opportunities and equal treatment of men and
women in matters of employment and occupation (recast). COM (2004) 279 final –
2004/0084(COD)- supplement SEC (2004) 482
See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=190518
• Proposal for a decision of the European Parliament and Council of 1 June 2005 on the
European Year of Equal Opportunities for All (2007) – Towards a Just Society. COM
(2005) 225.
See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=192949
Other relevant news:
• Opinion of Advisory Committee on Equal Opportunities for men and women on the
forthcoming Commission Communication on future developments for equality
between men and women. (November 2005)
See:
http://europa.eu.int/comm/employment_social/gender_equality/docs/2005/opinion_roadmap_
en.pdf
• UK Presidency Gender Equality Conference \"What works for Women, meeting the
challenges, sharing the solutions\", Birmingham, UK (7-8/11/2005)
See: http://europa.eu.int/comm/employment_social/gender_equality/news/index_en.html
• Employment, Social Policy, Health and Consumers Affairs Council (8-9/11/2005)
See: http://www.europa.eu.int/comm/employment_social/emplweb/news/news_en.cfm?id=98
• Women and Men in decision-making – a question of balance (15/11/2005)
See:http://www.europa.eu.int/comm/employment_social/gender_equality/news/index_en.html
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State of affairs in equality cases pending before the Court of
Justice
All cases, which have been decided or for which an opinion has been delivered, can be found on
the web-site of the Court of Justice:
http://curia.eu.int/index.htm
Recent case law specifically relating to gender equality can also be found on the following web-
site: http://europa.eu.int/comm/employment_social/equ_opp/rights/jurisprud.html
1. Cases for which an opinion has been delivered
CASE C-540/03 PARLIAMENT v. COUNCIL
Date of deposit: 22 December 2003
Opinion: 08 September 2005
O.J.: 21.02.2004/C 47/21
Action for annulment of Article 4 (1), 4(6) and 8 of Council Directive 2003/86/EC - Right to family
reunification
CASE C-227/04 P LINDORFER
Date of deposit: 2 June 2004
Opinion: 27 October 2005
O.J.: 24.07.2004/C 190/10
Article 141 EC - Pension rights
CASE C-294/04 SARKATZIS HERRERO
Date of deposit: 12 July 2004
Opinion: 10 November 2005
O.J.: 11.09.2004/C 228/28
Directive 85/92/EC - Equal treatment - Maternity rights
CASE C-423/04 RICHARDS
Date of deposit: 12 December 2004
Opinion: 15 December 2005
Directive 79/7 – Equal treatment – Pension rights - Transsexual
2. Pending cases
CASE C-172/02 BOURGARD
Date of deposit: 10 May 2002
O.J.:30.04.2004/C 118/26
Directive 79/7/EEC – Progressive implementation of the principle of equal treatment for men and
women in matters of social security.
CASE C-229/03 HERBSTRITH
Date of deposit: 7 April 2003
O.J.: 30.04.2004/C 118/32
Directive 76/207/EEC – Directive 97/80/EC - Principle of equal treatment – Burden of Proof –
claim for compensation
CASE C-137/04 ROCKLER
Date of deposit: 8 March 2004
O.J.: 30.04.2004/C 106/37
Directive 96/34/EC - Sickness benefits- Parental leave
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CASE C-185/04 ÖBERG
Date of deposit: 20 April 2004
O.J.: 10.07.2004/C 179/2
Directive 96/34/EC - Sickness benefit- Parental leave
CASE C-204/04 COMISSION V. GERMANY
Date of deposit: 7 May 2004
O.J: 07.08.2004/C 201/14
Directive 76/207/EEC and Directive 97/81/EC
CASE C-17/05 CADMAN
Date of deposit: 11 January 2005
O.J.: 19.03.2005/C 69/18
Article 141 EC
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News of the Member States
AUSTRIA1
Anna Sporrer
Official Journals, court decisions, initiatives for legislation and other parliamentary materials are
available in German on the Internet at: http://www.ris.bka.gv.at
1. Legislation
The time-limit for implementation of Directive 2002/73/EC was set at 5 October 2005. However, at
Federal State level, this Directive was already implemented in 2004, by legislation which came
into force on 1 July of that year (OJ I 65/2004 and OJ I 66/2004).
Where the Austrian regions are concerned, the Directive has now been adopted in 5 out of the 9
Länder, namely in Lower Austria (OJ 45/05), Styria (OJ 66/2004), Tyrol (OJ 1/2005), Vienna (OJ
37/2005) and Vorarlberg (OJ 17/2005). The Länder of Burgenland, Upper Austria, Carinthia, and
Salzburg failed to implement the Directive on time.
2. Case Law
2.1. Constitutional Court: Discrimination of homosexual couples under the social security
system2
The Constitutional Court has set aside several provisions of the Social Security Act and the
relevant Statutes of the Vienna Regional Social Security Fund which led to differentiation
between heterosexual and homosexual couples. Following the decision of the European Court of
Human Rights of 24 July 2003 (the Karner case, case no. 40016/98) the Court departed from its
earlier case law and took the view that where legislation refers to a life partnership only and does
not require marriage or a blood relationship any differentiation on grounds of sex and or sexual
orientation must be justifiable on weighty grounds not to constitute an infringement of the principle
of equality. If the legislation therefore stipulates that the unemployed opposite-sex partner of the
insured who keeps house for the insured is considered co-insured under the national health
insurance system, the same must apply for the same-sex partner.
2.2. High Administrative Court: Sexual harassment - dismissal of a police officer3
The High Administrative Court has confirmed a decision of the High Disciplinary Board (which is
part of the (former) Ministry for Public Administration and Sports) by which a leading police officer
was dismissed from service for sexually harassing two female subordinates over a period of 4
years and was also found guilty by the criminal court of sexual coercion in two cases.
2.3. Supreme Court:
2.3.1. Dismissal due to pregnancy4
The Supreme Court has dismissed the claim of a female worker whose employment had been
terminated because she was pregnant. The worker had been employed by the company as a
temp. Two weeks into her probation period she realised that she was pregnant. Three days after
she had informed her employer accordingly she was dismissed. However, now that her
employment had been discontinued during her probation period, the worker, instead of entering a
claim for unfair dismissal, claimed for discrimination in access to employment. The Court referred
to ECJ case law5 and considered that Directive 76/207/EEC allows the Member States to
1
Official Journals, court decisions, initiatives for legislation and other parliamentary materials are
available in German on the Internet at: http://www.ris.bka.gv.at
2
Constitutional Court, 10.10.2005, G 87/05 et al. and V 65/05 et al.
3
High Administrative Court, 21.9.2005, 2002/09/0135.
4
Supreme Court 31.8.2005, 9ObA4/05m.
5
Dekker, C-177/88; Mahlburg, C-207/98; Habermann-Beltermann, C-421/92; Webb C-32/93;
Tele Danmark, C 109/00; et al.
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implement the Directive’s objectives by the measures which they see fit. Both the Austrian
legislator and the social partners under the relevant collective agreement have elected to treat
discontinuation of the employment during probation as dismissal rather than as a case of barred
access to employment. The claim had therefore not been made under the correct provisions of
the Austrian Equal Treatment Act.
2.3.2. Severance pay for part-time workers6
The Supreme Court has rejected a claim by a female part-time employee that she had been
(indirectly) discriminated against because her severance pay had been reduced in accordance
with the reduced hours which she had only recently begun to work. It is established case law of
the Supreme Court that the amount of severance pay depends on the last-earned salary.
Severance pay is intended to provide employees who have been made redundant with an income
that is comparable to their average last-earned salary in order to secure a continued income for a
certain period of time. Despite the fact that the majority of part-time workers are women, the
Court was of the opinion that the arrangement did not discriminate against part-timers in general,
but only affected those who had switched from full-time work to part-time work just before
dismissal. On the other hand, however, the arrangement favours part-timers who after some time
switch to full-time work, e.g. because their children start school or leave home. For this reason,
the Court held that the arrangement as such had no discriminatory effect on women.
2.3.3. Time-limit for complaining of sexual harassment in the workplace7
The Supreme Court has upheld the claim of a female employee at a bakery who claimed to have
been severely harassed by her former employer. Due to her timid nature, she had kept silent
about the incident for almost a year. She finally suffered a breakdown and left her employment.
As her notice was the result of the discriminatory behaviour of her former employer, she claimed
compensation for unfair dismissal as well as outstanding wages and compensation based on the
Equal Treatment Act. The employer argued that she had forfeited any rights which she might
have had as she had not handed in her notice until a year after the harassment occurred. The
Court found however that sexual harassment constitutes a violation of human dignity and an act
of violence against personal integrity and self-determination. Victims of sexual harassment – who
in most cases are women – often feel powerless as a result of the harassment and are too
ashamed to tell anyone. They also fear that they will face additional hardship if they report the
harassment. In this way, victims of sexual harassment are often unable to speak out for quite
some time. This fact in 2004 even led the legislator to amend the relevant provision of the Equal
Treatment Act, by which the time-limit for claims based on sexual harassment at the workplace
was extended from six to twelve months.
3. Pending cases before the UN Committee on the Elimination of all Forms of
Discrimination Against Women
In 2004 two communications were filed with the UN Committee on the Elimination of all Forms of
Discrimination against Women. Both concerned the death of a woman at the hands of her (former)
husband. Both husbands had long records of violent behaviour and had each announced that they
would kill their wife. Essentially, these communications claim that the Austrian authorities, i.e. the
police and the public prosecutor, failed to protect these women effectively. The complaints are of
general interest insofar as they raise substantive questions of effective implementation and
enforcement of women’s rights, in particular questions concerning the training of officers and judges
dealing with women’s rights cases, institutional and procedural questions, etc. The communications
have been submitted by two Austrian women NGOs, namely the Vienna Intervention Centre against
Violence in the Family and the Austrian Association for Women’s Access to Justice, which is an NGO
dedicated to the effective enforcement of women’s rights.
6
Supreme Court 30 September 2005, 9ObA65/05g.
7
Supreme Court 3 August 2005, 9ObA112/05v.
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BELGIUM
Jean Jacqmain
1. Legislation
1.1 Implementation of Directive 2002/73
Three months after Bulletin no. 3/2005, there is no progress to report. Once again, the federal
government has found more pressing issues to deal with; consequently, the draft Bill is still being
discussed by the Ministers of Employment and of Equal Opportunities and the Conseil d’Etat has
not been asked to give an opinion yet.
1.2 Maternity and adoption leave in the public service
1.2.1 The MultiPurpose Act of 9 July 2004 introduced several improvements in the rules
concerning maternity leave by way of amendments to the Working Conditions Act of 16 March
1971: one week was transferred from the (optional) prenatal to the (compulsory) postnatal part of
the leave, postnatal leave was extended by two weeks in case of a multiple delivery, and a
provision was added that upon the mother’s request, maternity leave can be extended to a
maximum of 24 weeks in case the baby has to remain in hospital beyond the first seven days of
its life. These improvements have been reported in Bulletin no. 2/2005. The Act of 16 March 1971
is applicable to all employers and employees in Belgium, but it does not deal with remuneration
during maternity-related leave. Employees who come under the social security scheme for paid
workers are entitled to allowances paid under the maternity insurance scheme, while tenured civil
servants continue to receive their normal remuneration. The various regulations applicable to civil
servants therefore had to be amended to comply with the changes brought by the MultiPurpose
Act of 9 July 2004. This has taken nearly one year for some of the different authorities involved,
for instance, the Royal Decree of 19 December 1998 on leaves and furloughs in the federal public
service was finally amended by a Royal Decree of 12 October 2005.8 Although the human
resources departments had all been informed by way of circulars and no individual difficulties
were reported, this is one more example of the ponderous adjustment of public regulations to
developments in labour law, especially concerning the protection of maternity.
1.2.2 The same Act of 9 July 2004 introduced a significant improvement of the adoption leave
(from ten days to six weeks for children under three and four weeks in all other cases). For this
the Employment Contracts Act of 3 July 1978 had to be amended, as had the Consolidated Act of
14 July 1994 on health care, sickness and maternity insurance so that the employee would
become entitled to a maternity allowance during adoption leave, starting on the fourth day after
the adoption, with the first three days payable by the employer. These amendments did not give
rise to any spectacular changes in the public sector where such provisions were already in force
and the entire leave is paid by the employer, including that of staff appointed under employment
contracts. However, as regards the federal public services, the Royal Decree of 12 October 2005
also introduced the basic protection against dismissal under the Act of 9 July 2004 for these latter
staff members (i.e. payment of fixed damages in the amount of three months’ remuneration
unless the employer can demonstrate that the grounds for dismissal were unrelated to the
employee’s use of the adoption leave). So far, this protection remains the only provision which
has been adopted to implement Directive 2002/73 (see above, 1.1).
1.3 Reform in the prépension schemes
The federal government has adopted a plan which it has rather pompously called a “Covenant of
Solidarity Between Generations” and by which it is intended to increase the occupation rate
among older employees, to reduce the unemployment rate among young people and to improve
the financing of the social security system. The plan has met with solid opposition from the trade
unions, including a one-day general strike, and some of its aspects are still being negotiated. The
most sensitive area is that of the prépension schemes under which, after having been made
redundant, older employees are entitled to a monthly allowance payable by their former employer
to complement unemployment benefits. In order to induce employers to retain older employees
on their staff, the government intends to introduce stricter seniority conditions for eligibility for
8
M.B/B.S., 14 November 2005.
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participation in prépension schemes. However, this has caused concerns of a risk of indirect
discrimination against women, given the persisting unequal distribution of care responsibilities.
For this reason, according to reports in the media, the first draft of the plan contained different
conditions for men and women and the Institute for Equality of Women and Men had to caution
the government that such differentiation would be unacceptable under Article 141 EC, as
illustrated by the ECJ case Commission v. Belgium, C-173/91 of 17 February 1993, and that any
reduction of the required seniority should apply to all employees who had once assumed care
responsibilities.
2. Case Law
In Bulletin no. 2/2005 it was reported that a claim of gender discrimination in connection with pay
and maternity leave had led to an extremely disappointing judgment of the Labour Court of
Appeal of Liège,9 which had reversed a decision of the Labour Court of Marche-en-Famenne.10
The dispute concerned the remuneration which the Post Office, a public body, had to pay to a
female tenured staff member when she, after having been allowed to work part-time, was ordered
to resume full-time service by a particular date which just happened to be the first day of her
maternity leave. It was claimed that the aim of postponing the resumption of full-time service was
that this meant that the employer would only have to pay half the worker’s remuneration during
her leave and that this was an act of direct discrimination.
Upon appeal to the Cour de Cassation, the judgment in the second instance was quashed11
because the Labour Court of Appeal had not countered the claimant’s arguments based on the
domestic legislation concerning equal treatment with respect to working conditions (Act of 7 May
1999), taken together with ECJ case law (especially C-342/93 Gillespie). The case was referred
to the Labour Court of Appeal of Brussels, where it is now pending.
Most remarkably, this is the first time that in matters related to gender equality a trade union has
supported one of its members in legal proceedings which went all the way to the Cour de
Cassation. Unions will routinely assist their members in litigation by providing them with counsel,
but it is exceptional that they cover the fees of a specialised barrister with the Cour de Cassation,
which are deliberately fixed at a very high level in order to serve as a deterrent (except in penal
cases). However, the three trade union confederations will occasionally support an appeal when
the case goes to the principle of a certain matter. It is thus well worth noting that the Fédération
générale du travail de Belgique invested in this way in the legal defence of a victim of gender
discrimination, especially in the light of the fact that in 2004, upon the invitation of the federal
Minister of Equal Opportunities, the three confederations subscribed to a Charter of Gender
Equality, thereby undertaking to intensify their efforts to challenge sex discrimination.
BULGARIA
Genoveva Tisheva
During the period under consideration there were no substantial legal, judicial or policy
developments in Bulgaria in the area of gender equality. From September to December 2005 the
new government set out its initial internal policy commitments and allowed the representatives of
the three coalition partners to become acquainted. Time was also devoted to demonstrating to
the EU that Bulgaria has implemented all the requirements for full EU membership.
During this period voters also expressed their disenchantment with previous government policy
and voted in the main for the socialist party, expecting them to keep the promises made during
the election period. However, Prime Minister Stanishev clearly stated in October 2005 that the
government would not be able to keep these promises, mainly due to external pressure. As a
matter of fact, very soon after the establishment of the new government, the IMF imposed
additional budgetary constraints.
Clear evidence of the strong influence of the IMF is the recent outcome of the teachers strike in
Bulgaria. The salaries of teachers in primary and secondary schools are among the lowest in the
9
Judgment of 15 September 2004, Rôle general no. 3645/2003, unreported.
10
Judgment of 21 March 2003, Rôle general no. 27.221, unreported.
11
Judgment of 5 September 2005, 5.05.0016.F, available at http://www.cassation.be.
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country, while promoting education was declared to be one of the priorities of the new forces in
power. Negotiations between the teachers and the government ended with no substantial results
for the strikers, also due to the intervention of the IMF, which referred to the restrictive budgetary
policy which the Bulgarian government has to follow. This outcome has clear implications for
gender equality, as the profession of teachers is dominated by women and the fact that they are
continuously overlooked constitutes indirect gender discrimination. It also contributes to further
gender segregation in this sector.
The restrictive budgetary policy also poses challenges to the future development of the gender
equality machinery in Bulgaria - an issue which will be further discussed below.
1. Legislative developments: initiative for an Equal Opportunities Act
As harmonisation with EU standards is considered to be almost completed, there have been no
substantial changes in the legislation concerning gender equality. The next round of changes will
follow in 2006 in connection with the harmonisation with the acquis in the field of equal treatment
in social security matters.
One important development, however, is the reviving of the idea to enact a separate law on equal
opportunities for women and men in Bulgaria. The initiative for drafting such a law was recently
taken by the Ministry of Labour and Social Policy. The draft is intended to be ready by the end of
January 2006. This very idea of the new government is commendable in itself. The main
challenge will be to position the new law within the framework of existing legislation, especially
the Law on Protection against Discrimination and the Labour Code. A main focus of discussion
surrounding the new law is the nature of the new institution on gender equality and its position,
competences, budget and staffing. It is obvious that Bulgaria needs such an institution, which in
many countries already exists. At the same time, the need for a gender equality mechanism has
to be balanced against the budgetary constraints mentioned above.
It remains to be seen what further developments will take place in this context. At this stage, it
would be of great help if the EU supports the enactment of the new law and the establishment of
a gender equality mechanism in Bulgaria.
2. Case law
There have been no important court decisions in the field of gender equality or even any cases
brought before the courts. This confirms that the Law on Protection against Discrimination has not
yet become fully operational in practice when it comes to starting sex discrimination proceedings
before the courts. It also confirms the need for a special law to distinguish between sex
discrimination and other grounds of discrimination, which would make legal action easier for both
the applicants and the courts. A parallel can be drawn with the Law on Protection against
Domestic Violence here, which has been in force since 1 April 2005. This Law provides for clear
procedures for protection in court and there has been substantial court practice both in Sofia and
other towns.
Currently, in connection with the drafting of the new law on equal opportunities, the Ministry of
Labour and Social Policy has requested information from several district courts throughout the
country concerning the number and nature of sex discrimination cases that have been brought
under the Law on Protection against Discrimination. The outcome of this survey will be included
in the next Bulletin.
Remarkably, despite the appointment of a special panel on gender discrimination as part of the
Commission on Protection against Discrimination, no important equal treatment cases have been
brought before the Commission during this period. There have been some cases, but these
mostly concerned multiple discrimination, for example claims based on both discrimination on
grounds of religion and of gender. The cases in question have not yet been reported, but it is
already known that gender was not the leading ground for discrimination.
3. Policy initiatives and other developments
3.1 Changes to the Gender Equality Unit at the Ministry of Labour and Social Policy
The Gender Equality Unit at the Ministry of Labour and Social Policy has ceased to exist as an
independent unit. Gender equality will now be an aspect of the broader field of equal
opportunities for which a new Equal Opportunities Department has been established at the
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Directorate of Demographic Policy, Social Investment and Equal Opportunities. This may be
considered a step back, but it has to be kept in mind that the new law on equal opportunities for
women and men which is currently being drafted will provide for a new gender equality institution.
3.2 National Plan of Action for promoting equal opportunities for women and men
On 24 November 2005 the Council of Ministers adopted the 2006 National Plan of Action for
promoting equal opportunities between women and men. The aim is that all state institutions will
combine forces to carry out the policy for equal opportunities for women and men in all areas of
economic, political and social life. This includes ensuring equal access to health services,
education, decision-making, equal access to resources in society, overcoming gender
stereotypes, and working with the media. The Plan will be funded from the budgets of the
different institutions. This again means, however, that there is no separate funding for the
implementation of this Plan of Action.
We hope that the 2006 Action Plan will have a better chance of success than the previous Plan.
This means that it must not remain limited to promises, that there will be adequate financial
resources for its implementation and also that women’s NGOs and academic groups will be
involved in it.
CYPRUS
Lia Eftstratiou-Georgiades
1. Case law
1.1 CIVIL APPEAL 294/2005 - Attorney General v Costas Costantinou:
The Respondent was a British as well as a Cypriot citizen, who had fled to Cyprus while on trial in
the UK for a series of criminal offences. The Respondent was arrested by local police who sought
to surrender him to the UK authorities, based on the provisions of the newly enacted Law
133(I)/2004. The matter came before the Supreme Court of Cyprus, which concluded that the
surrender of Cypriot nationals to UK authorities, on the basis of a European Arrest Warrant,
cannot be effected. The Court reasoned as follows.
In 2004, the House of Representatives enacted Law 133(I)/2004 as the national legislation
implementing the framework decision concerning the European Arrest Warrant in the domestic
legal order.
Article 11 of the Constitution of the Republic of Cyprus exhaustively enumerates the reasons for
justifying the arrest of a person. None of them can be interpreted as allowing the arrest of a
Cypriot national for the purposes of his surrender to the authorities of another Member State. Law
133(I)/2004, which allows arrest in order to surrender the suspect to foreign authorities,
contradicts the provisions of the Constitution and is therefore unconstitutional.
The Supreme Court, although recognising the binding character of framework decisions, went on
to note that they are not directly effective. The intended results of a framework decision – which
are binding on the Member States – may be achieved only through transposition in accordance
with the appropriate legal procedure in each Member State. This was not the case in Cyprus,
since the provisions of Law 133(I)/2004 conflict with the provisions of the Constitution.
Based on the Court’s reasoning, the Government has decided to proceed with the amendment of
the Constitution, so that in the near future it will be able to fulfill its obligations under the Treaty of
the European Union.
1.1.1 Comments
Equality between men and women is enshrined in Article 28(1) of the Constitution, which prohibits
any direct or indirect discrimination against any person, inter alia, on grounds of sex (Article
28(2)).12
12
1. Νitsa and Georgia Zoukof v. Republic of Cyprus, 25 July 1990, case no. 912/89, Zoe
Nikolaides v. Republic of Cyprus, 19 January 1999, Appeal no. 2148, Marina Christophorou v.
The Republic, 1985 3 CLR 1868, 23 October 1985, Pelagia Eglezaki v. G. Attorney of Republic,
1992 1 A.A.D 697.
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The Supreme Court recognises that the constitutional principle of equality guarantees substantive
equality, and since 1962 has accepted the broad interpretation of the concept of remuneration2
corresponding to Article 141(formerly 119) of the Treaty on European Union. However, the Court did
not allow positive action on behalf of any group.
I would contend, however, based on the Supreme Court judgments referred to above, that the
Government has to amend Article 28 (1) and (2) of the Constitution in order to implement the law
that was accepted within the framework of harmonization with the acquis communitaire regarding
the principle of equality between men and women.
1.2 File Numbers C.A.B. 27/2005, 28/2005, 47/2005, 52/2005
The Ombudsman has examined allegations made by male complainants regarding the current
system of employment as teachers in Primary and Secondary Education, in that it discriminates
against men.
Under Cypriot law, males over the age of eighteen have an obligation to serve for over two years
in the National Guard. Normally, enlistment takes place before male candidates pursue university
education.
Under the current system, university graduates who wish to be employed as teachers in Primary
and Secondary Education have to apply in order to be included in the “List for Appointment”.
Thereafter, the primary criterion for employment is the year in which this application was made to
be included in the “List of Appointment”. Other criteria include the year in which the first university
degree was obtained. It follows that people who apply to be included in the “List for Appointment”
as early as possible, after the completion of their studies, take priority over the rest of the
candidates who are to apply in the future. Men therefore who have an obligation to serve in the
National Guard and subsequently have to postpone their studies for two years are placed in an
adverse position when compared to women who wish to be employed as teachers. In addition
and taking into account the fact that seniority is the primary factor in achieving a promotion to a
higher position/rank and/or a pay rise, the established practice has a number of effects
throughout the career of the male candidate/teacher.
Outlining the provisions of the legislation concerning equality in the workplace, the Ombudsman
concluded that the current system of appointment discriminates against men. In the light of this
finding, the Ombudsman recommended that the Ministry of Education and Culture promotes the
amendment of the legislation so as to achieve substantive equality between men and women.
1.2.1 File Number C.E.B. 31/2005
1. The Ombudsman has examined a complaint concerning allegations made against the
Police. More specifically, the Complainant alleged that she was not recruited by the
Police Force as a Special Officer because she was pregnant at the time of the
recruitment. The Complainant had successfully completed all the required examinations
and she had satisfied all the criteria set, apart from the fact that she had not undergone a
chest X-ray examination because of her pregnancy.
2. After conducting an investigation, the Ombudsman concluded that the provisions of the
Special Officers (Procedure of Appointment and Conditions of Service) Regulations 2004
as followed by the Police Hiring Committee in conjunction with the practice followed by
the Police discriminates against pregnant women. The Ombudsman suggested that
pregnant women should be employed, on the condition that the results of a chest X-ray
examination undergone after childbirth and nursing are satisfactory. The Ombudsman
pointed out that the recommendation for the different treatment of pregnant candidates
2. Xinari V Republic of Cyprus 1962 3 CLR p. 98.
3. Micrommatis v. Republic of Cyprus, 2R S.CC 125, A. Mavrommatis v. Republic of Cyprus,
2023, 28 December 1998, Constantinou v. Republic of Cyprus, case no. 1063/99: positive
action not allowed; President of Republic of Cyprus v. Parliament, report 2/89, 29 August 1989.
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can be justified as a positive measure countervailing the disadvantageous position in
which pregnant women find themselves.
1.2.2 File Number C.E.B. 30/2005
1. The Ombudsman examined a case concerning allegations made by a woman that she
was the repeated victim of gender prejudice during recruitment proceedings carried out
by the Department of Antiquities. More specifically the Complainant alleged that during
the years 1992–2004 several of her colleagues who had the same background and
experience had been promoted to the position of Antiquities Guards, while she herself
had not been.
2. After conducting an investigation the Ombudsman concluded that:
(a) Currently in Cyprus 81% of the Antiquities Guards are men and 19% women.
(b) The duties of the position can be competently carried out by both sexes, and the sex
of the candidate is not a decisive factor.
(c) Women Antiquities Guards are not assigned the main duties or all of the duties of the
post.
The Ombudsman arrived at the conclusion that during hiring proceedings sex constitutes a
tacit factor and one cannot therefore exclude the possibility that the Complainant had been
the victim of discrimination. The Ombudsman also pointed out that the Complainant had a
right to claim compensation under Section 14(1) of the Equal Treatment of Men and Women
Act 2002 to remedy the damage which she had suffered.
CZECH REPUBLIC
Kristina Koldinská
1. Legislative developments: adoption of the Anti-Discrimination Law
On 7 December the Chamber of Deputies approved the Law on Equal Treatment and Legal
Instruments of Protection against Discrimination (hereinafter: Anti-Discrimination Law). The Law
still needs the approval of the Senate and the signature of the President.
During the discussion of the Law in Parliament several amendments to the Bill were adopted. The
final draft has unfortunately not yet been published.
The Law is of a general character in that it provides protection against all forms of discrimination
on all conceivable grounds. This includes maternity and pregnancy.
Professional assistance to persons who claim to have been discriminated against will be provided
by the office of the Ombudsman (of which there is only one in the Czech Republic).
As a result of the Anti-Discrimination Law, all other laws containing provisions relating to
discrimination and anti-discrimination measures have been amended.
From laws which used to regulate anti-discrimination measures the relevant provisions have been
withdrawn and inserted into the Anti-Discrimination Law. Among these Laws the following should
be especially mentioned:
• Act No. 65/1965 Coll., Labour Code
• Employment Act No. 435/2004 Coll.
• Act No. 221/1999 Coll., on Professional Soldiers
• Act No. 218/2002 Coll., on Civil Service
• Act No. 361/2003 Coll., on Service of Members of Security Forces
• Act No. 1/1992 Coll., on Remuneration
• Act No. 143/1992 Coll., on Wages
§ 133a of Civil Procedure Code No. 99/1963 has also been amended. It used to provide that
“Claims as to direct or indirect discrimination on grounds of sex shall be considered proven by the
court in labour cases unless during the proceedings the opposite is established” and this has now
been extended to cover not only labour cases, but also cases concerning other non-independent
activity, including access thereto, and cases concerning the professions, entrepreneurship and
other self-employed economic activity, membership in employers’ or employees’ organisations
and membership in professional associations.
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DENMARK
Ruth Nielsen
1. Amendment of the Danish Equal Treatment Act
On 15 December 2005, the Danish Parliament finally adopted an Act amending the Equal
Treatment Act whereby Denmark with some delay implemented Directive 2002/73/EC. The Act
will come into force one day after its publication in Lovtidende (the Danish Official Journal).
The definitions of direct and indirect discrimination including the clarification concerning
instructions to discriminate (Article 2 (4)) and less favourable treatment related to pregnancy and
maternity leave and harassment and sexual harassment including the clarification concerning
decisions taken on the basis of rejection of or submission to such conduct have been
implemented. The provision in Article 2 (7) of the Directive requiring that less favourable
treatment of a woman related to pregnancy or maternity leave within the meaning of Directive
92/85/EEC shall constitute discrimination within the meaning of the Directive has been
implemented in the Danish Equal Treatment Act by a provision stating that direct discrimination
on grounds of sex shall be considered to have occurred in all cases of negative treatment in
connection with pregnancy and during maternity leave taken by a woman during 14 weeks after
confinement.
Section 5a of the Danish Equal Treatment Act has extended the scope of application of the
principle of equal treatment to also cover membership of and involvement in organisations. This
has removed the problem which existed previously in Denmark concerning this point as after over
a century the Women Workers’ Union has ceased to exist as an independent trade union. On 1
January 2005 it merged with the predominantly male General Workers’ Union into 3F.
The upper limits on compensation which were in place under the ‘old’ Danish Equal Treatment
Act have also been abolished.
A few problems remain, however. No new provisions have been introduced to implement Article
6(3) of the Directive according to which Member States shall ensure that associations,
organisations or other legal entities which have a legitimate interest in ensuring that the
provisions of the Directive are complied with, may engage, either on behalf of or in support of the
complainants, with his or her approval, in any judicial and/or administrative procedure provided
for the enforcement of obligations under the Directive. Current Danish law on the right of
organisations to bring cases before the ordinary courts is unclear. A case on the issue is pending
before the Danish Supreme Court.
Denmark has decided it does not need to take any action to implement Article 8a of the Directive
on the establishment of an equality body for the promotion, analysis, monitoring and support of
equal treatment of all persons without discrimination on grounds of sex.
Denmark has also chosen to do nothing to implement the provisions on the obligations to
encourage the prevention of discrimination (Article 2 (5) of the Directive), social dialogue (Article
8b of the Directive) and dialogue with non-governmental organisations (Article 8c of the
Directive).
2. Force majeure for family reasons (Clause 3 in the framework agreement attached to
Directive 96/34/EC).
On 30 November 2005, the Minister for Family and Consumer matters presented to Parliament a
proposal for statutory provisions to implement the force majeure clause for urgent family reasons
in the Parental Leave Directive. In Denmark, that clause has hitherto only been implemented in a
number of collective agreements allowing parents to stay at home in case of a child's illness.
3. The Act on reimbursement of pregnancy payments in the private sector
(Barselsudligningsloven)
On 8 December, the Minister for Family and Consumer matters presented to Parliament a
proposal for an Act on reimbursement of pregnancy payments in the private sector
(Barselsudligningsloven). The new Act will require all employers in the private sector to pay
contributions into a special pregnancy fund. When the employers actually pay out pregnancy-
related payments to their staff they can claim reimbursement from the fund.
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4. Gender-specific wage statistics
In spring 2001, the then social-democratic government proposed an amendment of the Danish
Equal Pay Act to introduce a duty for employers with more than 10 staff to – upon request –
produce gender-specific wage statistics for the enterprise. The Act was passed in June 2001 but
it was provided that the provisions on a duty to provide gender-specific information should not
come into force until 1 July 2002 in order to give the employers a chance to prepare for the
fulfilment of this duty. The present liberal-conservative government which took office in November
2001 amended the Equal Pay Act so that it became up to the Minister for Employment to decide
when (if ever) the provision should come into force.
On 7 December, the Minister for Employment submitted a proposal to Parliament to amend the
Equal Pay Act. The new provisions will require employers with 35 staff or more to disclose
gender-specific wage statistics. There is already a duty on the part of the employers to report
their wages to Denmark’s Statistical Bureau for statistical purposes, partly due to Denmark’s duty
to provide statistical information to the EU. If the employer so wishes he/she can obtain the
gender-specific wage statistics which have to be disclosed to his/her staff free of charge from the
Statistical Bureau.
ESTONIA
Anneli Albi
1. Legislative developments: disciplinary detention of female soldiers
On 21 September 2005 Parliament adopted a law which allows the imposition of the penalty of
disciplinary detention on female soldiers, except during pregnancy. Disciplinary detention could
not previously be imposed on women under Articles 21(3) and 23(3) of the Defence Forces Act.13
According to the Explanatory Memorandum to the new law, such differentiation is in breach of the
principle of equal treatment of men and women. Earlier, the Chancellor of Justice (an institution
similar to the Ombudsman) had already drawn the attention of the Ministry of Defence to this
matter.
2. Policy initiatives and other developments
2.1 Gender Equality Commissioner
The newly-appointed Gender Equality Commissioner, Ms Margit Sarv, has dealt with eleven
queries during the first two months of her appointment. Two queries concerned circumstances
that were specific to the applicant and nine queries related to general issues regarding equality.
Five queries were made by men and six were made by women. The queries concerned the
following: equal treatment in the media (1), employment relations (recruitment and equal pay) (2),
services (2), equality-related training (2), defence (1), social security (1) and the raising of
children after a divorce (1).
2.2 Office of the Chancellor of Justice
In October 2005, the Office of the Chancellor of Justice published its Annual Report concerning
its activities over 2004.14 This institution, apart from functioning as a type of Ombudsman since
2004, is also competent to mediate in discrimination cases. According to the Report, only one
such mediation was initiated in 2004 between private parties. The proceedings concerned
different treatment on grounds of citizenship. As participation in the proceedings in question is
voluntary and the defendant did not wish to cooperate, the case was discontinued and no official
opinion was issued. In 2004, the Chancellor of Justice also questioned the constitutionality of the
Defence Forces Act as discussed above.
According to the Report, the Chancellor of Justice in the course of 2004 focused on raising
awareness amongst the general public concerning its new competences and on training its
employees in the field of equal treatment. For instance, in March 2004 a round table was held,
with the participation of non-profit organisations working in the field of gender equality, disability,
13
RT I 1997, 95/96, 1575; 1999, 31, 425.
14
Õiguskantsleri 2004.a. tegevuse ülevaade [Overview of the Chancellor of Justice’s activities in
2004], Tallinn 2005, www.oiguskantsler.ee.
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sexual minorities and national minorities. The objective of the round table was to inform the
organisations concerning the Chancellor of Justice’s new mediation competences in the field of
equal treatment law, and to exchange information concerning problems that arise in practice.
Employees of the Office further underwent training in the field of EU non-discrimination law, in co-
operation with the Northern Ireland Equal Treatment Commission. The training involved visits to
relevant institutions in Northern Ireland and in the EU. At the end of 2004, the Office of the
Chancellor of Justice joined the European Network of Specialized Equality Bodies (EuroNEB).
The purpose of the network is to develop and facilitate information exchange between equality
bodies, to support cooperation between the relevant institutions of the Member States and the
European Union, and to harmonise the practices of interpretation and application of European
Union law in Member States.
2.3 Ministry of Social Affairs
On 7 December 2005, the Ministry of Social Affairs, in cooperation with other organisations, held
a conference on “the new masculinity”. Whilst the position of women has gained importance and
the role of women has expanded as a result of activities promoting gender equality, the position
of men has remained largely unchanged. The purpose of the conference was to redefine thinking
and broaden minds concerning masculinity and to liberate the concept from stereotypes, now that
diversity and multiplicity of roles are considered to enrich society.
3. Developments in general discrimination law: termination of employment contracts
On 27 October 2005, Parliament initiated a Bill amending Article 86, item 10 and Article 108 of
the Labour Contract Act, which currently provides that an employer may terminate a labour
contract on the ground that the employee has reached the age of 65. The Explanatory
Memorandum accompanying the Bill points out that this ground is incompatible with Directive
2000/78 and has been criticised by the EU, the Council of Europe and the ILO. A similar Bill had
been voted on a few months earlier, but failed to secure the required majority. The Bill was
resubmitted following the Chancellor of Justice’s request to Parliament, in which he pointed to the
unconstitutionality of the current provisions.
FINLAND
Kevät Nousiainen
1. Enforcement of Act on Equality
The amended Act on Equality between Women and Men came into force in June. The revised Act
specifies new requirements for gender equality planning. Under Section 6 a of the Act, all
employers of more than 30 persons must set up an equality plan containing an analysis of the
equality situation in the workplace and, as a part of that, an analysis of the placement of women
and men at different tasks, an analysis of the job classification and pay by gender, as well as an
analysis of pay differentials. A working group assigned by the Ministry of Social Affairs and
Health, representing the Gender Equality Unit of the Ministry and all labour market central
organisations have compiled a handbook for equality planning to be used at workplaces. The
handbook leaves the specific structure of the pay analysis rather open, as workplaces vary. Yet,
the analysis should always be given separately concerning all pay components, i.e. based on job
qualifications, personal competence and results.15
2. Policy initiatives
2.1 Parenting costs
The present Government in its programme promises to introduce a more equal distribution of the
cost of parenting between employers in male-dominated and female-dominated branches of the
segregated labour market. A gender-neutral parental leave, mainly paid through social insurance,
has been available for around 20 years. Still, it is the mothers who continue to take the leave and
parental benefit in the great majority of cases. A recent ‘bonus’ extension of the leave for fathers
15
Why, what and when of gender equality planning. Handbooks of the Ministry of Social Affairs
and Health 2005:19 (in Finish).
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that share the family leave with the mother has led to some amount of sharing of the leave
between parents. The imbalance between the parents remains, however. Some costs related to
parental leave still burden the employer, and these costs are borne by the employers of typical
‘female’ sectors of the labour market. The Ministry of Social Affairs and Health appointed an ad
interim Rapporteur to investigate the matter. The Rapporteur proposed the establishment of a
parental insurance scheme from which the employers’ costs could be covered. Even the costs of
force majeure family leaves, such as leaves of absence for taking care of a sick child, could be
covered from the insurance. The Rapporteur also proposed that the amount of the parental leave
benefit should be raised. Today, the benefit paid under the Sickness Insurance Act 2004/1224 is
regressively income related, and fathers who usually have higher incomes than mothers tend to
lose a greater part of their income if they take parental leave. A rise in the benefit would thus
encourage men to use their right to leave.16
2.2 Fixed-term employment relations
Another ad interim Rapporteur appointed by the Ministry of Labour has investigated the frequency
of the use of fixed-term employment contracts and possible violations of labour and anti-
discrimination law in that context. For the investigation, a study by Statistics Finland mapped out
the number of such contracts and enquired into the reasons for their use. The use of fixed-term
employment has continued to increase in Finland, especially for young people and highly
educated women of childbearing age. The public sector, which employs women in health care,
education and social welfare jobs, continues to use fixed-term contracts widely. Partly, the use of
fixed-term work in these fields is explained by the frequent need of workers substituting those on
family-based leave, although a recurrent need for substitutes does not justify the use of a chain of
fixed-term contracts. Also the use of hired work has increased in Finland. The Rapporteur
concludes that the supervision and legal safeguards have been inefficient, and proposes that the
Employment Contracts Act be clarified and the law on hired work amended. The Rapporteur
draws attention to the discriminatory use of fixed-term work for women of child-bearing age. The
Equality Ombudsman has noted that fixed-term contracts are not always continued when the
employee in question becomes pregnant. The report also notes the connection between the
prevalence of the use of family-based leaves and fixed-term contracts in female fields of work.
The cooperation and negotiation system as well as legal remedies should be strengthened to
deal with the problems, according to the Rapporteur.17
There is reason to suspect that the use of fixed-term contracts in some fields, mainly for young
female staff, may constitute indirect discrimination, because, as the report also notes, fixed-term
contracts are twice as common for women than men in the age group with small children. The
Rapporteur does not discuss indirect discrimination in this context, however.
Both the report on increased compensation for the costs caused by family leaves and the report
on the fixed-term employment contract have been criticised in public by the employers’ unions.
Setting up a one-person Rapporteur instead of a tripartite committee when issues concerning
labour law are discussed is unusual, which may partly explain the criticism.
3. Celebration of women’s suffrage
Several events and initiatives have been taken in connection with the celebration of the
centennial of universal and equal suffrage in Finland in 2006; the universal suffrage of 1906
included both the vote and eligibility in elections for women. The Committee for the Centenary of
Women’s Full Political Rights in Finland initiated the production of specific suffrage pages on the
web. The webs contain texts by researchers and other information on women’s political rights,
also in English. The suffrage site was opened in December, see www.aanioikeus.fi.
16
Janne Metsämäki, Increased compensation for the costs caused by family leaves. Report by
the ad interim Rapporteur Working Group, Memorandum of the Ministry of Social Affairs and
Health 2005:16 (in Finnish).
17
Kirsti Palanko-Laaka, Määräaikaisen työn yleisyys, käytön lainmukaisuus ja lainsäädännön
kehittämistarpeet. Työhallinnon julkaisu 359. Työministeriö 2005.
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4. Developments in general discrimination law
The Labour Court has ruled on the alleged discrimination of a fixed-term worker in case TT:2005-
111. As fixed-term work has become strongly gendered (see above), the decision may have
gender relevance. A collective agreement in force for the postal service in its capacity of
employer included provisions that had to prevent the renewal of fixed-term employment contracts
for inappropriate reasons. The provisions had been adopted after the use of fixed-term contracts
had risen abundantly. In the case in question, the employer had recruited a new, less qualified
fixed-term worker for tasks which had earlier been performed by another, experienced fixed-term
worker. The recruitment took place three weeks after the first fixed-term worker’s contract had
ended. The employers’ organisation had interpreted the provision in the collective agreement that
had to prevent this as only applying for a week after the first contract had expired. The Court
however found that the collective agreement had been violated. It also implied that if the
employer had been able to prove that the new worker was the better person for the job, this could
have been considered an objective justification. Any actions against the employer for damages
had to be brought before the ordinary courts.
FRANCE
Hélène Masse-Dessen
1. Legislative developments
1.1 Law concerning equal pay
The Bill concerning equal pay is still being debated by Parliament, but is expected to be passed
soon, as on 12 December last it was adopted after second hearing by the National Assembly and
has just been submitted to the Senate.
1.2 Law concerning Social Security funding adopted on 23 November
The law in question has amended the rules concerning parental leave and the parental benefit
known as allocation de presence parentale, which the parents of severely ill, disabled or injured
children are entitled to. The scheme allows parents to take time off work or reduce their hours in
order to care for their child. It was created in 2001 and intended for use by an estimated 13000
families. In practice, however, the number of families applying for this leave was far less and the
scheme was amended to allow parents a “credit” of 310 days leave with full salary compensation
which is to be taken within a period of 3 years.
By the same law amendments were made to the leave known as congé de libre choix d’activité.
Under this leave parents with at least 3 children who leave work in order to raise them are now
entitled to a monthly benefit of 750 euros. The benefit can be shared between the two parents.
Under another scheme parents are eligible for a parental education benefit (allocation parentale
d’education, hereinafter: APE) for their first child during 6 months at 512 euros a month. For a
second child they are entitled to the same amount up to 3 years. However, returning to work after
this period has proven difficult, apart from for civil servants who must be guaranteed a position
after having made use of the scheme. A third rung on the APE ladder has been built in for a
different purpose, namely to boost birth rates. For this reason, the benefit under this rung may be
increased to a maximum of 750 euros a month. Certain provisions under tax law also have as
their objective to boost the birth rate by allowing tax breaks for parents of at least 3 children and
granting them double family benefits.
The myriad rules have made family policy very complicated and do not incite women to work.
APE rights are not coordinated with pension law as the concurrent parental leaves are not all
taken into account to calculate pensions.
Another amendment has remedied the situation whereby Article 10 of the law of 11 February
2005, although providing for an extension of maternity leave in case of premature birth, did not
entitle the women in question to extra benefits. Extra benefits are now provided under a new
Article L 331-3 of the Social Security Code.
Finally, a rule has been adopted which was the subject of much debate. It provides that
immigrants are only entitled to family benefits for children who were born in France or have
regularly visited the country by means of the appropriate legal procedure, children of whom a
parent is entitled to a residence permit for private and family life reasons (Article L 313-11 of the
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law concerning admittance and residence of aliens) and who entered France with this parent, or
children who are specifically protected (such as refugees or under, for example, the special
residence permit for scientists). The Constitutional Court has approved the provision in question
provided that children whose situation becomes regular after entering France also receive the
allowance.
2. Case law
2.1 Administrative courts
There have been no exceptional developments in this field, apart from the fact that the spate of
case-law and legislative amendments ensuing from Griesmar has not abated. Many male civil
servants have applied for equal benefits, although time-limits have often frustrated their
applications, while many female civil servants have protested against the loss of the pension
bonus which they would have been granted if their pensions had been calculated under the old
situation.
2.2 Ordinary courts
The number of equal pay cases brought before the courts is increasing as lawyers become more
familiar with the instruments for pay comparison.
The many cases that were brought before it have led the Cour de Cassation to use clearer
concepts and to better distinguish between equality and non-discrimination rules.
The system of compensation has also been improved. The Cour de Cassation has decided that
victims should not only be granted financial compensation, but that their entire careers have to be
re-calculated including for the future, as for example in Soc. 23 November 2005, request no. 03
40 826 (not yet reported), which did not concern sex discrimination as such, but discrimination
against trade union members, but which can easily be imagined to apply in a similar way for any
sex discrimination cases arising.
However, many problems continue to exist, especially in the field of proof.
The Cour de Cassation has also decided not to issue an interpretation of the concept of
harassment. The Cour held that it is for first instance or appeal courts to decide whether
harassment, which is a factual notion, has in fact occurred. Again, an example may be found in a
related area in case Soc. 23 November 2005, request no. 04 46152 (not yet reported) which
concerned moral harassment.
3. Other institutions
The new High Authority against discrimination has begun its work, although this has not yet led to
apparent results. It is being decided which studies will be carried out and action on behalf of
victims is as yet limited to assistance in individual cases. Combating discrimination against
women is only one part (and a very small part at that) of the activities assigned to this authority,
although efforts are made not to let gender discrimination slip by the wayside.
4. Further observations
Discrimination in general has received much attention in France, but gender discrimination is not
clearly distinguished from other grounds of discrimination. Many events have been organised
concerning this topic for an audience of judges, labour administrations, practitioners, employers,
managers, etc., like for example in Paris on 9 December last.
Pensions are also still top the agenda. The Conseil d’Orientation des Retraites, which is an
independent authority whose role is to study pension schemes and propose any necessary
reforms, has decided to table for 2006 “the quest for equality between men and women in
statutory pension schemes” which inter alia cover civil servants. Studies which were discussed in
a major meeting in Paris on 15 December which kicked of the working programme have revealed
the presence of a significant gap between men’s and women’s pension levels. This is caused by
the fact that women’s careers are shorter than men’s and that during their career they are paid
less. Measures aiming to achieve a balance based on a family concept of pension law and
indirect rights are being contested due to their adverse effects. However, if indirect pension rights
which originate with women’s husbands’ pensions were to be abolished, women would face a
sharp decrease in the amount of pension which they would receive. In addition, the reforms that
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have come into force as a result of Griesmar, or under the pretext of Griesmar, have already
penalised women now that the number of working years used to calculate their pension has been
reduced and men can claim pension retroactively without any age or income requirements
applying. The reforms which were abusively presented as necessarily following from EU law –
which is absolutely not true – are of course the subject of severe criticism for not creating a better
situation and in fact reversing former advantages. This is yet another example of the fact that
equality in the meaning of EU law has to be constantly and clearly explained.
GERMANY
Dagmar Schiek
Generally, there have not been many developments in the period between the elections in October
and the end of the year. After the elections, the Social Democrats (SPD) and the Christian
Democrats (CDU) formed a “Grand Coalition” and due to the fact that both have almost equal clout
negotiations on the future course of government are still ongoing.
1. Legislation
1.1 Parental allowance – another new (and equally disputed) proposal
The SPD and the CDU have agreed to improve the situation of young families and to encourage
fathers and mothers alike to take family leave by introducing a new “family allowance”. In order to
encourage more fathers to take family leave, the family allowance will be in the amount of two-thirds
of the monthly pay. In a first proposal from family Minister Ursula van der Leyen (CDU) families were
to receive up to 1800 euros per month during 12 months, provided that each parent claimed at least
two months. The allowance is in any case considerably higher than the previous meagre
Erziehungsgeld of 600 euros (900 if claimed for two years) which practically served as an
encouragement for mothers to leave the labour market. The new model is harshly criticised,
especially by CDU/CSU politicians, who argue that it imposes an obligation on men to take family
leave if families are not to lose two months of benefits.
1.2 Progress of the Bill to implement Directives 2000/43/EC, 2000/78/EC, 2002/73/EC and
2004/113/EC
The passing of this Bill was severely threatened by the premature elections. On 20 December,
however, the Greens took an important step to help progress in this issue by retabling the Bill as it
had been passed by the Bundestag on 2 July, even though this version meant that the Greens had
to make considerable sacrifices on issues that were important to them in favour of business-related
interests. Shortly after the elections, the new (and also old) Minister of Justice, Brigitte Zypries,
declared that she would support a Bill which would ban discrimination in the provision of goods and
services on the following grounds: race and ethnic origin, gender, disability, sexual orientation and
age. This means that the wide approach to outlawing discrimination might, after all, become a reality
in Germany. The bill is to be found here: http://dip.bundestag.de/btd/16/002/1600297.pdf
2. Case Law
On 20 December, the Federal Constitutional Court18 informed the public of its judgment of 6
December on the gender-specific name which the law requires transsexuals to have. The case
involved a transsexual who had chosen not to undergo a sex change operation. The question was
whether after marriage this person was allowed to continue to be called by the same gender-specific
name from before the transformation. The Court held that in effect the law requires transsexuals to
undergo an operation if they wish to be known by a certain name and held that this was in violation of
transsexual persons’ personality rights and for this reason ruled that the statutory provision in
question (§ 7 para. 3 of the Transsexuellengesetz) was unconstitutional and void. Like the ECJ in its
recent case law on transsexuality,19 the Constitutional Court seems prepared to accept the reality
18
Case no. 1 BvL 3/03, press release available at http://www.bundesverfassungsgericht.de/cgi-
bin/link.pl?presse.
19
Case C-117/01 K.B. [2004] ECR I-541.
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that nature provides for more human variety than the traditionally acknowledged two sexes. As has
been demonstrated by the ECJ judgment referred to, this opens up the possibility of considering
discrimination on grounds of the sex of a partner as sex discrimination proper instead of opting for
the ground of sexual orientation.
GREECE
Sophia Spiliotopoulos
Measures against domestic violence
1. The Report of a Special Commission
1.1. For many years, Greek women’s NGOs have been demanding specific legislative and other
measures (mainly aimed at supporting victims) against domestic violence. Last March, the General
Secretariat for Equality set up a Committee whose task it was to examine this question. This
Committee was composed of academics and other legal experts, a psychiatrist and a social worker
and of representatives of the abovementioned General Secretariat and of the Ministries of Justice
and Public Order and was chaired by an honorary judge of the Supreme Civil and Penal Court.
The Committee heard representatives of the social services, political parties, local authorities and
women’s NGOs.
1.2. In its Report, published in July 2005, the Committee mentions that it took into account relevant
international conventions ratified by Greece and recommendations of international organisations;
developments at EU level; the seven indicators against domestic violence proposed by the Danish
Presidency of the EU (2002) within the framework of the follow-up of the Beijing Platform of
Action;20 a comparative study of the policies and legislative measures adopted by the 15 EU
Member States and Cyprus; and studies regarding the sociological and other aspects relevant to
the phenomenon of domestic violence in Greece.
1.3. The Report presents the legal and factual situation in Greece, as well as proposals for the
adoption of legislative and other measures. According to the Report, domestic violence, although
less widespread in Greece than in other European countries, is a disturbing phenomenon, whose
victims are mainly women and children. There is a considerable amount of domestic violence
which is not reported and thus remains ‘invisible’. Experience and research have shown that like in
other countries this phenomenon is not only due to individual psychological factors, but also to a
considerable extent to social stereotypes which perpetuate the inferior position of women in
society. Neither the victims, nor the perpetrators are necessarily poorly educated or come from
poor socio-economic backgrounds. Moreover, the use of alcohol or drugs or the existence of
mental health problems, although they aggravate the situation, are not, in the majority of cases,
decisive factors in domestic violence. Violence against women is a serious human rights breach
and, for it to be eradicated, it must be dealt with as such.
1.4. The Report recommends the adoption of several amendments to the Penal Code, to the Code
of Penal Procedure and to the Code of Civil Procedure, as well as a Plan of Action for the
prevention and combat of domestic violence, which will include measures relating to education
(reform of school programmes, training of teachers), the media, the creation of shelters for women
and children victims of domestic violence, as well as more general policy measures for the support
of families and vulnerable individuals and groups. Regarding the substantive penal law provisions,
the Report considers that it is not necessary or opportune to make acts of domestic violence
specific offences. It will be more effective under Greek penal law, to complement relevant existing
provisions of the Penal Code, e.g. those relating to corporal injury, coercion, etc, by providing for
heavier penalties in case the victim is the perpetrator’s spouse or cohabiting companion, child of
20
The seven indicators are as follows: characteristics of women victims of violence,
characteristics of the perpetrators, support to the victims, measures for dealing with perpetrators
with a view to ending the circle of violence, training of professionals, state measures for the
eradication of domestic violence whose victims are women, evaluation.
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any age, parent/parent in law, brother/brother in law or sister/sister in law. Moreover, the Report
recommends that intra-marital rape be made an offence.21
1.5. A system of ‘penal mediation’ should also be provided, in accordance with the Framework
Decision of the Council of the European Union on the standing of victims in criminal proceedings,
dated 15 March 2001 (2001/220/JHA). This ‘penal mediation’ should be undertaken by the public
prosecutor dealing with an act of domestic violence, provided that the accused unreservedly
promises that he/she will not commit any act of domestic violence in the future and that he/she is
prepared to undergo counselling and make good the damage sustained by the victim. During the
penal mediation, the relevant statute of limitation is to be suspended. In case the penal mediation
succeeds, the prosecution has to be discontinued.
1.6. As an exception to a general penal procedure rule, the spouse, the parents, the children and
the brothers or sisters of the accused should be heard as witnesses, but not under oath. The
possibility to hear via audiovisual means any witnesses who might be traumatised if they had to
appear in court in person, in particular minors, should also be provided. Witnesses who are called
upon to testify or have testified in trials relating to domestic violence should be able to benefit from
special protection where necessary.
1.7. Furthermore, the Report recommends the setting up of structures for the prevention and
repression of domestic violence and for support of the victims and/or the strengthening of existing
structures of this kind, including counselling services, SOS telephone lines, shelters for women
and children victims of domestic violence, etc. It also recommends the establishment of a
permanent Commission for the coordination and follow-up of the measures aimed at combating
domestic violence and the drafting of a Plan of Action for the prevention and repression of
domestic violence.
2. Bill on domestic violence
2.1. Following the above Report, the Ministry of Justice elaborated a Bill “for countering domestic
violence”. This Bill contains provisions amending the Civil Code and the Code of Civil Procedure. It
also addresses matters dealt with by the Penal Code, and the Code of Penal Procedure, but it is
drafted as an independent piece of legislation. The Bill also contains provisions aiming at the
support of victims of domestic violence. More particularly:
2.2. The Bill defines the “family” as a community consisting of the spouses, their natural or adopted
children and their close relatives who live with them, or of cohabiting couples in a prolonged and
stable relationship and their natural or adopted children. Single parent families are not included in
this definition. The amendments to the Civil Code provide that: domestic violence of any kind
presumes the breakdown of the marriage and constitutes a ground for divorce and a parent who
commits violent acts against his/her child may be deprived of the custody of this child (by court
order only). The latter can already be inferred from the Civil Code.
2.3. Regarding substantive penal law provisions, the Bill unfortunately does not implement the
recommendations in the Report. Instead of complementing provisions of the Penal Code (supra no
1.4), it makes acts of domestic violence specific offences. This may well create legal uncertainty, in
particular regarding the definition of these specific offences as compared to the definitions
provided by the corresponding Penal Code provisions. Moreover, the Explanatory Report to the Bill
(in contrast to the Report, supra no 1.3) does not mention the fact that the victims are mainly
women and that, therefore, along with children, the Bill mainly aims to protect women.
2.4. The Bill does follow the Report in that it makes intra-marital rape an offence (supra no 1.4). It
also follows the Report in that it provides that, during civil litigation relating to domestic violence,
the civil court may order the departure of the perpetrator from the family home and/or prohibit the
perpetrator from nearing the home or workplace of the victim and the victim’s close relatives, the
school of the children or the shelter where the victim resides. The same measures may be ordered
21
Currently, Art. 336 of the Penal Code punishes only “extramarital” rape.
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by a penal court which hears a domestic violence case. Minors may testify as witnesses in a
domestic violence case which is heard by a penal court, but not in open court (although their
testimony will be read out in court), unless the court considers their presence necessary for finding
the truth. This approach seems less protective of minors than the approach recommended by the
Report (supra no 1.7).
2.5. According to the Bill, the public prosecutor dealing with an act of domestic violence may
initiate “penal mediation” The Bill describes the details and consequences of the procedure and in
this mostly follows the Report. In case of investigation of an act of domestic violence, the
competent police authorities may not make public in any way the names of the victim and the
perpetrator, their home address and any other data that may disclose their identity. The Bill also
provides for certain measures of support to victims of domestic violence and requires that teachers
who somehow find out that a pupil has been the victim of domestic violence must inform the school
principal who must refer the case to the public prosecutor. The teachers may only be called as
witnesses if the information cannot be proven by any other adequate means. However, generally
speaking, the supporting measures do not seem sufficient.
2.6. The General Secretariat of Equality has invited NGOs and lawyers and any other interested
parties to comment on the Bill until the beginning of January.
HUNGARY
Csilla Kollonay Lehoczky
1. Legislation
1.1 Draft Bill on the Amendment of the Equality Act
In December 2005, a draft Bill was submitted to Parliament for the amendment of the Equality
22
Act. The proposed amendments are intended to harmonise the procedural rules of the Equal
Treatment Authority (ETA) with the Act on Public Administration Procedures. It regulates cases
where parallel procedures are initiated before both the Courts and the ETA, obliging the ETA to
stay the proceedings and consider the case as res judicata once the Court has made a final and
binding decision. The amendment further proposes some minor changes in the procedure before
the ETA. The amendment also aims to provide a more detailed regulation of the status of the
Equal Treatment Body (the consultative body elected to advise the ETA) and its members and
elevates the rules concerning this Body to the level of an Act of Parliament rather than that of a
Decree as was previously the case.
Some changes were also proposed in respect of the permitted exceptions. Firstly this is to bring
the provisions into line with the terminology used by the Constitutional Court and secondly to
abolish the possibility of exceptions on the basis of colour, race, ethnicity or national origin. The
proposed amendments further extend the scope of the Equal Opportunity Plan beyond
employees and abolish the (never implemented) provisions concerning the “Equal Opportunities
Programme of the Republic”. The draft Bill does not, however, remedy the gaps left in the
implementation of Directive 2002/73; on the contrary, it is conspicuously silent on gender equality,
apart from amending the definition of harassment as a type of violation of the equal treatment
principle. Before, harassment was defined as “offensive behaviour” (targeting one of the attributes
mentioned in the law and aiming to cause or causing an intimidating, hostile, humiliating, shaming
or offensive environment) is now changed to “offensive behaviour of a sexual or other nature”.
This might be a first covert attempt to bring the law into line with the Directive without referring to
it, as full harmonisation would require many further legislative steps.
1.2 Draft Bill on Reproductive Procedures Available for Single Women
To date, unmarried women are only allowed to undergo in vitro fertilization if they are part of a
registered partnership. The draft Bill on Reproductive Procedures aims to make the treatment
available for single women as well. As part of this proposal it was also debated whether the
treatment should be available for fertile and infertile women equally.
22
Act no. CXXV of 2003 on equal treatment and the promotion of equal opportunities.
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2. Case Law
2.1 Supreme Court Decision concerning the prohibition of dismissal during pregnancy
The Supreme Court of the Hungarian Republic has made an important ruling concerning the
protection of pregnant women against unfair dismissal. In its decision which was reported in
September 2005 the Court held that the woman in question, who did not know of her pregnancy
when she was dismissed, could claim compensation for unfair dismissal on grounds of pregnancy
and damages arising out of the employer’s unlawful behaviour during the proceedings in the first
instance. The employee in question had first brought a claim of unfair dismissal based on other
grounds (incorrect justification of the dismissal) which claim had failed. However, just before the first
instance proceedings came to an end, which was two years after her dismissal (by which time her
child had already been born), she also claimed that she had already been pregnant at the time of her
dismissal. The employer argued that as she had failed to argue pregnancy at any previous time
during the proceedings she could not enter such a claim now and that this could in no way invalidate
the dismissal or should at least result in a limitation if not the complete forfeiture of the employee’s
entitlement to compensation. As opposed to the lower courts, the Supreme Court held that the Code
of Civil Procedure permits the modification of a claim at any time during the proceedings in the first
instance and that the law imposes no other limitations. For this reason, the late submission of the
modified claim did not affect the unfairness of the dismissal or the right to compensation. In addition
to this objective reasoning, the Supreme Court also considered that the employee had represented
herself without the aid of an attorney and also that the pregnancy had been visible to all, including
the employer, at the time of the first instance proceedings.
ICELAND
Herdís Thorgeirsdóttir
1. Legislative developments
The main opposition party has announced its intention23 to introduce a proposal for legislation
eradicating pay secrecy. The proposed legislation will explicitly ban pay secrecy within
businesses. Employers will be prohibited from obliging their employees not to disclose their
salaries. Employment contracts that demand pay secrecy are a violation of the gender equality
law (Act no. 96/2000), according to the chairman of the party behind this proposal who, apart
from the evidently discriminatory nature of the requirement not to discuss salaries, also mentions
additional reasons such as poor work ethics. Pay secrecy is further regarded as going against
gender equality law where this prohibits the waiving of any rights provided for in the law, among
which the right to equal pay.24
2. Court cases
On 8 December, the Supreme Court ruled25 that the Minister of Social Affairs (and gender
equality) acted in violation of the administrative procedural law principle of proportionality by
demanding the resignation of the director of the Centre for Gender Equality.
The circumstances of the case were as follows. The director of the Centre, who was a woman of
around 50 years old, had been appointed by the previous Minister of Social Affairs for a five-year
term in 2000. During that time she was also chairman of the board of a municipal theatre and she
had been involved in the appointment of a new (male) theatre director in 2002. This appointment
was contested before the Equal Rights Complaints Committee which concluded that the gender
equality law (Act no. 96/2000) prohibiting discrimination in access to work had been violated. A
year later this decision was confirmed by the competent district court. The director of the Centre
for Gender Equality subsequently asked for a meeting with the by that time new Minister of Social
Affairs, who was a 40-year old man who was commonly considered as the next chairman of his
political party. The Minister immediately made it clear at the start of their short meeting in his
office that she did not have his support and advised her to resign from her post immediately. The
director consented on the spot and the Minister issued a news release. Six months later the
23
12 December 2005.
24
RÚV 12 December 2005.
25
Supreme Court no. 175/2005.
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Supreme Court quashed the decision of the district court that there had been discrimination and
ruled instead that no equal rights provisions had been violated by the contested appointment. The
former director of the Centre for Equality hereupon brought a claim before the court for
compensation for her premature resignation under pressure from the Minister and, as it turned
out, for no valid reason.
The Supreme Court held that the Minister had failed to submit any sufficient reason or objective
justification to support his claim that the resignation was to ensure the unimpeded operation of
the Centre for Gender Equality and that this could not have been ensured by less stringent
means, e.g. by the temporary suspension of the director from her post awaiting the decision of
the Supreme Court as she had recommended. The Supreme Court ruled that the Minister of
Social Affairs had therefore violated the principle of proportionality. By pressuring the director to
resign he had failed to comply with the general principle of administrative law which prohibits that
cases are handled in such a way as to avoid fair procedure and that prescribes the resolution of
disputes in a way that guarantees legal certainty. The Minister by his actions had incurred state
liability for the amount of IKR 6 million (approximately 69,000 euros) in compensation and moral
damages.
The Minister does not intend to resign from his post despite the harsh criticism that is being
levelled at him. The law on the responsibility of government ministers (Act no. 4/1963) provides
that a minister’s conduct is culpable if it violates any law or the Constitution. There are no clear
rules concerning the issue of resignation, however, other than that a majority of Parliament may
approve a resolution for a minister’s forced resignation, which in this case is not likely to happen
now that the government has the support of the majority of Parliament. The Minister himself
maintains that the judgment concerns administrative practices, not gender issues.
The Complaints Board that hears complaints of violations of the maternity/paternity and parental
leave based on Act no. 95/2000 has recently delivered a ruling26 which, although not open to
further appeal, may serve as the basis for proceedings before the ordinary courts. The complaint
was brought by a woman against the publishing company where she worked as an editor before
going on maternity leave and which subsequently refused to let her return to her job or to a
comparable job. After confinement and maternity leave, she had intended to extend her leave by
consecutively taking the summer vacation which she was entitled to. According to the law,
employment relations between an employee and her employer shall remain unchanged as much
as possible during maternity leave. Where this is not possible, the employee shall be entitled to
return to a comparable position. The ruling referred to the explanatory memorandum of the then
Bill on maternity/paternity/parental leave which emphasised the right of the employee to return to
his/her job after the leave, but left unimpaired the right of the company or institution to make
general changes in the operation of the business which might affect the employee in question just
like any other employee. The Complaints Board held that the dispute revolved around the
question of whether the complainant had in fact been enabled to return to her job or a
comparable job after her maternity leave. The Complaints Board held that the burden of proof
hereby rested on the employer. The outcome of this case was that the claimant had not in fact
been permitted to return to her job, now that the company had been unable to justify its actions by
showing general changes in the operation, and instead maintained that the complainant had been
offered a comparable editorial post. There is no evidence to show that this was the case other
than a few vague plans of the company to start some new publications. After having tried
unsuccessfully to clarify her position within the company, the complainant had sought the
assistance of the journalists’ association. The Complaints Board ruled that the publishing
company had violated the Act on Maternity/Paternity and Parental Leave by not enabling the
complainant to return to her job as editor or to a comparable job after the leave.
3. Policy initiatives and other developments
The municipality of Reykjavík has concluded two collective agreements27 based on a gender
neutral job evaluation system (equivalent to the system established by local employers in the UK)
26
8 November 2005.
27
16 and 17 December 2005.
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which covers all employees apart from top managers. The majority of the work force, i.e. 80 %,
are women. The determination of the salary based on the job evaluation system largely favours
the lower paid, but large sections of the work force will be given salary rises of up to 25 %.
Another policy initiative by the Reykjavík municipality with relevance to gender equality is the new
funding of educational opportunities for job development with a view to further salary increases.
Yet another policy initiative is the coordination of pension rights for employees in the Icelandic
labour organisation with the pension scheme in place for civil servants.
The Minister of Social Affairs has launched a survey among businesses and institutions to verify
pay equality in line with the gender equality law (Act no. 96/2000). The objective of the
programme is to examine whether or to what extent pay differences are gender based. Where no
such discrimination is discovered, companies that have achieved pay equality will receive an
official recognition to that extent.
IRELAND
Frances Meenan
1. Legislation
1.1 National Childcare Strategy
Budget 2006 has provided as part of the National Childcare Strategy 2006 – 2010 various reliefs
for parents with young children to increase substantially child-minding places and to assist
parents with the cost of childcare. From 1 March 2006 paid maternity leave will increase to 22
weeks and unpaid 12 weeks; then from 1 March 2007 each will be increased by a further four
weeks making a total of 26 weeks paid and 16 unpaid.
1.2 Adoptive Leave Act 2005
The Adoptive Leave Act 2005 came into operation on 28 November 2005.28 Paid adoptive leave
was already 16 weeks with 8 weeks unpaid. Adopting parents are allowed paid time off during
work hours to attend preparation classes and pre-adoption meetings with social workers/ health
board officials during the adoption process.
2. Case Law
2.1 Sex as an occupational qualification
In Mr M v A Language School,29 the complainant was a teacher and applied for a position in the
respondent’s language school which was run by a religious order. The position involved visiting
the homes of host families and coping with homesick or emotional Italian students. The position
was offered but then withdrawn as it was considered that it would not be right for a man to visit
homes in this context and it was believed that Italian families would not entrust the welfare of their
families to a male manager. The respondent submitted that its conduct was excluded under the
Employment Equality Act 1998 on the basis that the gender of the employee was an occupational
qualification for the post and that the duties of the post involved services of a personal nature. In
summary the respondent acted on the mistaken belief that only women were capable of carrying
out the duties required for the position and had discriminated against the complainant.30
2.2 Sexual harassment
The sum of €137,000 (less 25% contributory negligence) was awarded in a sexual harassment
claim where the plaintiff alleged that she had been harassed by an independent contractor.31
2.3 Judicial Review
The High Court has granted leave for a lesbian couple to bring a legal action to have their
Canadian marriage recognised in Ireland and to have the Revenue Commissioners treat them
28
Adoptive Leave Act 2005 (Commencement) Order 2005 (save for extensions of leave in the
event of illness (sections 9 and 10)).
29
[2005] 16 ELR 35.
30
He was awarded the maximum for a non-employee under the Act, i.e. €12,697.
31
Atkinson v Hugh Carty & Others [2005] 16 ELR 1.
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under the Tax Acts in the same way as a married couple. McKechnie J. described the case as ‘of
profound importance for same sex couples and society as a whole’. He stated that if the couple
succeeded ‘a stream of consequences, legal, cultural, ethical and religious’ would follow.
In their forthcoming actions the Applicants will claim that the refusal of the Revenue
Commissioners to recognise them as a married couple in Irish law for tax purposes breaches
their rights under the Constitution and the European Convention for the Protection of Human
Rights and Fundamental Freedoms. They claim discrimination on the grounds of gender and/or
sexual orientation and breaches of the right to marry and to respect for their private and family
life.
In a reserved judgment on 10 November 2004, the Court granted leave to the couple to bring
their proceedings against the Revenue Commissioners, Ireland or the Attorney General. Further,
it was also directed that the Human Rights Commission of which one of the Applicants is a
member be made a Notice Party to the action. The Minister for Justice, Equality and Law Reform
announced on 20 December 2005 that a working group will consider civil partnership options.
2.4 Equality Tribunal32
The Equality Tribunal published figures for 2004 on 15 February 2005. In summary in 2004 the
Tribunal recorded a rise of 21% in the number of cases under the Employment Equality Acts,
1998-2004 and a 49% fall in claims under the Equal Status Acts, 2000 and 2004. This latter trend
was due to the transfer of claims in respect of licensed premises under the Equal Status Acts to
the District Court.
There was a 32% drop in the number of gender discrimination claims – ‘these have fluctuated
significantly over the last five years, from a high of 118 in 2001 to this year’s figure of 67 which is
the lowest in the Tribunal’s experience’.
The Tribunal also notes that its increased jurisdiction in respect of pensions has not led to any
increase in claims. There was one case in 2004 compared to three in 2003 and none in the
previous years.
The Director of the Equality Tribunal stated that there had been a 38% rise in the number of
cases of alleged discrimination referred to the Tribunal in the first nine months of 2005 compared
with the same period last year. Cases of alleged discrimination in employment were up 43% with
a particularly marked rise in the number of claims of discrimination in employment on the gender
ground (up 95%). There was also a 24% increase in equal status cases with an 83% increase on
the gender ground. There were also two cases referred on the gender ground under the pensions
legislation.
3. Reports on Gender Equality
Two reports are worth noting namely
(a) Equality at Work? Workplace Equality Policies, Flexible Working Arrangements and the
Quality of Work. This Report was commissioned by the Equality Authority,33 carried out by the
Economic and Social Research Institute (ESRI) and published in April 2005. The study was
based on a national representative survey of 5,000 employees in Ireland. It examined the
impact of equality policies and flexible working arrangements on workers’ well being, on their
attitudes to their jobs and employers and on job quality. In summary the Report showed that
formal policies to promote equality of opportunity entail a wide variety of benefits for both
employers and employees. They are associated with lower levels of work stress, higher levels
of job satisfaction and greater organisational commitment. Employees who work in
organisations with equality policies are much more likely to consider opportunities for
recruitment, pay and conditions and opportunities for advancement and career development
are fair and equal, even when other relevant factors are taken into account. The study also
looked at four different forms of flexible working arrangements – part-time working, flexible
hours, working from home and job sharing. One in four employees is involved in flexible
working and one in five work part-time; just 8.4% are involved in home work and 6.5% job
share. Part-time and flexi-time are both associated with lower work pressures and part-time
32
www.equalitytribunal.ie.
33
See www.equality.ie/publications.
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working also reduces stress and work-life conflict; home workers experience significantly
higher levels of stress and greater work pressure compared to workers with similar jobs and
working conditions who do not work from home.
(b) Degrees of Equality: Gender Pay Differentials Among Recent Graduates.34 The Department
of Justice, Equality and Law Reform commissioned the ESRI to study the distribution of pay
and other rewards among recent male and female graduates. This is a group where gender
differences in qualifications and labour market experience are minimal, which allowed a focus
on other processes affecting men’s and women’s wages. In summary this showed that there
was no overall hourly wage difference compared to a gender pay gap in the wider economy
of 15% in the year 2000. However there is a significant gap in the private sector, where
women earn 8.2% (11% on a weekly wage) less than men; there is no significant hourly
difference between men and women in the public service. Public sector graduates are better
paid than private sector graduates. A higher proportion of men than women receive bonuses
and at a higher value; this was in the main due to men’s concentration in the private sector.
Men are also more likely to receive a promotion and additional training. A significant pay gap
has emerged in the private sector only three years after graduation.
ITALY
Gisella De Simone
1. Legislative developments: Quotas for women candidates in political elections
On 14 December 2005, Parliament passed the election law reform which is to change the system
from one of majority to a proportional system. Only the centre-right parties voted in favour, but the
reform was given the green light despite strong opposition from the centre-left parties. In the
framework of this reform, the introduction of quotas for female candidates has been discussed
many times, but was finally rejected by Parliament, despite the fact that the proposal was made
by the Minister for Equal Opportunities, Stefania Prestigiacomo.
However, the relevant amendment has now been re-introduced by the same Minister and was
approved by the Council of Ministers on 11 November as a Bill to be re-submitted to Parliament.
In the light of the approaching elections in the spring it is unlikely however that this Bill will be
passed in time, as the majority parties are also planning to present to Parliament many reform
projects of their own. Moreover, the Government itself is deeply divided over the issue (as
evidenced by the votes against the amendment on 11 November from some important Ministers
such as Giovanardi, the Minister of Parliamentary Relations, Martino, the Minister of Defence and
Pisanu, the Minister of the Interior). The President of the Council of Ministers, Silvio Berlusconi,
has declared that his party (Forza Italia) intends to apply the “pink quotas” even if the Act is not
approved by Parliament on time.
The Bill would have more chance of succeeding if the minority (centre-left) parties could be
persuaded to vote in its favour, but this will likely prove difficult, as the main centre-left party
(Democratici di sinistra) has voiced strong reservations concerning the text as presented by
Minister Prestigiacomo. The text provides for the gradual insertion of a quota system along the
following lines: lists of candidates may not consist for more than two-thirds of candidates of the
same sex. Where order in the list is significant, after every three candidates of the same sex (two
in the second step of the enforcement of the law) a candidate of the opposite sex will be listed.
Sanctions for breaches both of representation and succession rules should consist of a cut in
contributions (from 10% to 50% in proportion to the infringement) as of the first time when the
rules are to be applied (in the proposal therefore from the upcoming spring elections onwards)
and inadmissibility of any list which does not fulfil the requirements as of the next election after
that. The Democratici di sinistra party declared that they would only vote in favour of the proposal
if the sanction was limited to the inadmissibility of the list, as it considered monetary sanctions
ineffective. The far-left party, the Partito della rifondazione comunista, opposes any quota system
that guarantees anything less than fifty/fifty representation.
34
www.esri.ie.
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The Bill would represent a second step forward in the implementation of Article 51 of the
Constitution which provides the principle of equality between men and women as regards
franchise and eligibility as amended by Act no. 1/200335 which adds to it the following provision:
the Republic shall promote equal opportunities for men and women.36 The first implementation of
the principles laid down in the new Article 51 was Article 3 of Act no. 90/200437 which governed
the 2004 European Elections. It states that in all lists of different districts which have the same
party symbol neither of the two sexes may be represented in a ratio greater than two thirds and
provided financial incentives and disincentives for the parties respectively observing or infringing
this rule.
2. Policy initiatives and other developments: Women participation in the labour market:
two recent reports
The 39th Annual Report over 2005 from CENSIS,38 an important and independent foundation that
carries out social research, among other things includes a summary of the situation on the Italian
labour market and of developments over the past year.
In 2005, there has been an increase in employment and a reduction of unemployment, but the
overall reduction of the percentage of the working/active population which set in several years
ago has been more marked over the past year. As self-employment rates continue to fall (-2.7%
in the second quarter of 2005 compared to the same period in 2004), the increase in the working
population is the exclusive result of the rise in the percentage of people in employment (by 2.4 %
in the second quarter of 2005 compared to the same period in 2004). Part-time work is on the
decrease, despite it having been labelled as one of the major changes to result from attempts to
find alternative ways to organise work.
As far as women in the workforce and working conditions for women are concerned some
statistics and trends revealed by the research should be noted here.
Concerning women’s participation in the labour market, it seems that they are mainly employed in
clerical positions without any incentive for change. In this sense, women are still a wasted
resource, notwithstanding the growing array of measures and rules to promote equality. CENSIS
remarks that the main problem is still that not enough women join the working population to begin
with or leave it again after a few years. In Italy, the percentage of women who are active on the
labour market is 37.1%, higher only than Malta’s (30.6%) and showing marked differences
between the various regions. However, this percentage has increased by 4.3% from 2000 to
2004, whereas male participation in the labour market only increased by 0.8% over the same
period.
Few women are entrepreneurs or managers (in industry, some 95% of managers are men) and
women are underrepresented in positions of power where they could influence rigid working
conditions and ways of organising work. This is despite the fact that a considerable percentage of
women are highly qualified. Furthermore, if we consider the practical impact of the principle of
equal pay, it must still be reported that men earn higher wages, especially in the over 60 age
group where they are better educated and have more experience and seniority.
The existence of the pay gap has also emerged from a study carried out by Federmanager39
among a group of 1200 female managers in industry. In their answers to a questionnaire on the
35
Constitutional Act no. 1/2003, in OJ no. 134 of 12 June 2003,
http://www.parlamento.it/parlam/leggi/03001lc.htm
36
This amendment has overruled the formal interpretation of the principle of equality by the
Constitutional Court in judgment no. 422/1995 – http://www.giurcost.org/decisioni/1995/0422s-
95.htm. The latter, taking into account that the principle of equality provided by Art. 3 and Art. 51
of the Constitution involves that the sex of a candidate shall never be an eligibility requirement,
declared the constitutional illegitimacy of a whole series of legal provisions in which it was laid
down that neither of the two sexes may be represented on lists of candidates for Town Council,
Provincial Council and Regional Council elections, or members of the Chamber of Deputies, in a
ratio greater than two thirds.
37
In OJ no. 84 of 9 April 2004, http://www.parlamento.it/parlam/leggi/040090l.htm
38
http://www.censis.it.
39
http://www.labitalia.com/articles/News/11159.html.
35

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issue of reconciling work with family these women painted a dramatic picture of all the obstacles
which they had had to overcome to attain their position and which they still faced trying to keep it.
Sacrificing personal and family life for the sake of work is still widespread: 90% of male
managers, compared to only 73% of women managers, were married or living together; only
13.9% of male mangers, compared to 43% of women managers, did not have children; moreover,
divorced, single and childless women received a higher salary compared to their female
colleagues who were married/living together and/or mothers. Female managers feel deeply
discriminated against, as they still need to show better past performance than men to get the
same positions and suffer more than men as a result of changes in modern-day business where
production tends to be decentralised abroad as they are less disposed to move, even if
temporary. They also complain of the fact that employers assign a higher value to “presence”
than to productivity and this helps men who can stay at work later and thus have more time for
public relations during the day.
LATVIA
Līga Biksiniece
1. Legislative developments
1.1 National Equality Body
On 15 December 2005 the Parliament of Latvia adopted several amendments to the law on the
Latvian National Human Rights Office (LNHRO) adding new functions to the mandate of the
Office in accordance with the EC Equality Directives. These functions concern: providing
independent assistance to victims of discrimination; conducting independent surveys and
publishing independent reports concerning discrimination. The LNHRO will be able to submit
cases on behalf of the complainant or to support the complainant in proceedings and to
participate in any judicial or administrative procedures provided for the enforcement of anti-
discrimination obligations.
The requirements which national equality bodies have to fulfil under the anti-discrimination
directives have all been implemented by these amendments. One problem might be that the
LNHRO’s mandate is not especially geared towards the promotion of gender equality, even
though the functions which it has been assigned to counter discrimination correspond to the
requirements of the EU Directives.
1.2 Employment
The amendments to the Labour Code which were adopted on 19 July 2005 by the Cabinet of
Ministers are still in the process of being discussed in Parliament. Amendments include inter alia
the implementation of the principle of equality into national labour legislation.
• With the amendment of Section 33.2.(1) of the Labour Code the provisions which allowed
the asking of questions concerning pregnancy during recruitment have been abolished.
This is a positive step towards bringing the Labour Code fully into line with principles of
EC law and preventing direct discrimination.
• According to an amendment to Section 53 of the Labour Code, pregnant women or
women who have given birth within the last year may now be sent on official travel or
working trips and, under the new Section 136, may work over time if they agree to this in
writing. Under the old rules women in this category and women who were breastfeeding
during the entire time that they continued to nurse their baby were absolutely prohibited
from working over time.
• Sexual orientation will be added to the prohibited grounds of discrimination, implementing
Directive 2000/78/EC.
2. Policy initiatives and other developments: Anti-Discrimination Department
On 16 November 2005 a special Anti-Discrimination Department was established as part of the
Latvian National Human Rights Office. The Department is intended to implement the relevant
provisions of EU Directives which require the provision of independent assistance to victims of
discrimination; the carrying out of independent surveys; the publication of independent reports
and informing the public concerning matters to do with discrimination. Due to a recent information
36

N° 1 / 2006
campaign, the number of discrimination cases brought to the attention of the Office has markedly
increased over the past few months.
The Ministry of Welfare has provided comprehensive training sessions on gender equality and EC
anti-discrimination law for civil and municipal servants and other interested persons in the
framework of a European Social Foundation project. This training included the analysis of
different concepts, statistics, legislation and ECJ and national case law. The sessions were
intended to aid the effective implementation of equality law in Latvia.
3. Developments in general discrimination law: implementation of Directive 2000/43
On 22 September 2005, a total of six amendments to various laws were adopted after first
reading with a view to the implementation of Directive 2000/43/EC on racial discrimination. The
scope of the amendments however extends beyond racial discrimination and includes a
prohibition of discrimination on all grounds, including gender. Although Latvia’s implementation of
this Directive is already overdue, the amendments have yet to be finally enacted.
LIECHTENSTEIN
Nicole Mathé
1. Legislative developments
1.1 Transposition of Directives 1999/70/EC and 1997/81/EC
On 29 September 2005, the government adopted and submitted to Parliament a report and
proposal (Bericht und Antrag)40 concerning amendments to the Civil Code (ABGB)41 in respect of
employment issues. The amendments are intended to implement Directives 1999/70/EC
concerning fixed-term work and 1997/81/EC concerning part-time work. The first reading of the
amendments was concluded on 20 October 2005.
1.2 Transposition of Directive 1996/34/EC
On 28 September 2005, the government adopted and submitted to Parliament a report and
proposal (Bericht und Antrag)42 concerning amendments to the Civil Code (ABGB) related to
employment matters. The amendments intend to modify the legislation by which Directive
1996/34/EC concerning parental leave was implemented. Under current rules, the right to
parental leave is limited to parents of children born after 31 December 2003. The amendment
aims to change this into a right for all parents of children under the age of three on 1 January
2004, which is the date on which the implementing legislation came into force. The new law will
entitle these parents only to exercise their right within a certain period, namely until 31 December
2008, which is three years after the planned entry into force of the amendments on 1 January
2006.
2. Policy initiatives and other developments
2.1 Call for tenders for the Equal Opportunities Prize 2006
On 19 September and 28 November 2005, Liechtenstein has invited the entry of projects for the
Equal Opportunities Prize 2006 (Chancengleichheitspreis 2006). The deadline for submitting
projects is 1 February 2006. The first prize is a cash price of 20000 CHF which is to be spent on
carrying out the winning project. The prize is given out annually by the Department for Family and
Equal Opportunities to award projects that enhance equal opportunities for women and men in
society.
Every two years the prize is put out to tender for projects conceived of by institutions and private
persons, and 2006 is such a year. Projects in order to be considered have to reach people and
must have a lasting effect or must positively influence equal opportunities for women and men on
a wide scale and improve women’s options. In addition to projects, concrete plans to improve the
professional and/or personal situation of women and men are also welcome.
40
BuA no. 107/2005.
41
Allgemeines Bürgerliches Gesetzbuch
42
BuA no. 64/2005.
37

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2.2 International day to combat violence against women
In a press release of 24 November 2005 the executive calls attention to the persisting problem of
domestic violence, which Liechtenstein is taking measures to counter. In 2003 the Gender
Equality Offices in Liechtenstein, Graubünden and Vorarlberg conducted an empirical study
entitled “Since walls cannot talk they protect offenders” concerning personal experiences with
violence and the general vulnerability to violence of men and women in these regions in
Liechtenstein, Austria and Switzerland. As a follow-up, the internationally cooperating regional
Gender Equality Offices of the three countries elaborated a practical guideline called “How can I
help?” for persons who are involved in domestic violence as relatives, friends or neighbours of
victims. The manual explains how violence may make its way into relationships and families and
describes the pattern of behaviour in a victim-offender relationship in order to make this complex
situation more understandable for persons not directly involved. Practical advice on how to act
and addresses where one can obtain professional help are included in the handbook, which
urges persons who suspect domestic violence to act instead of ignoring the problem. The manual
as well as advice in specific cases are available for free at the Gender Equality Office, the
women’s refuge in Liechtenstein and the organisation infra.
2.3. Autumn Father’s Day 2005
On 21 September 2005, the Equality Office organised a national Father’s Day on which children
of male employees were invited to come to work with their fathers. This event was the follow-up
to the Father’s Day on 18 March 2005 where fathers spent a day with their children at
kindergarten or school. This was again a possibility in September instead of bringing the children
in to work. Since it was first organised in 2004, Father’s Day has increased in popularity and more
companies participated this year. The feedback to the organisers was extremely positive and
enriching for all parties involved.
Father’s Day can enrich the relationship between fathers and their daughters and sons and build
a basis for further discussion, especially with regard to the vocational choices and life
perspectives of the children. Girls and boys can watch, contribute, ask, observe, discuss and
generally get a chance to become familiar with their fathers’ professional environment.
Companies can present themselves as innovative employers and potential trainers.
3. Developments in general discrimination law
3.1 Minimum wage and the working poor
The government has adopted and submitted to Parliament a report and proposal (Bericht und
Antrag)43 for the examination of measures to improve the situation of the working poor, especially
the introduction of a Code of Conduct in cooperation with the trade unions to guarantee a
minimum wage. The government in the report also explains that minimum wage, although it
increases income, is in the end not by itself sufficient to drastically improve the financial situation
of a typical working poor household. For this, other, more effective measures are needed. Part of
these could be to improve existing facilities, such as better coordination among the controlling
bodies, better application of existing controlling mechanisms and better application of the
collective agreements.
LITHUANIA
Tomas Davulis
1. Legislative developments: amendment to the Labour Code
On 26 October 2005, the Chairman of the Committee of Social Security and Labour of the
Lithuanian Parliament, Mr Algirdas Sysas, registered a proposal to amend the Labour Code of 4
June 200244 and a number of other laws regulating working conditions in the public sector. The
amendments are intended to introduce a new type of special-purpose leave, namely paternity
leave. According to the proposed new Section 179-1 of the Labour Code fathers would become
43
BuA no. 100/2005.
44
State Gazette, 2002, no. 64-2569.
38

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entitled to 30 days’ paternity leave to be taken immediately after the birth of their child. During the
leave they would be paid a paternity allowance to the amount of their full salary under the social
security system, subject to certain minimum and maximum limits. The need for this amendment
was underlined by the following arguments. First, the fact that in practice male employees are
often restricted in taking time off during their wife’s maternity leave was considered unacceptable.
Second, it was argued that men and women had to be able to benefit equally from social
insurance schemes. Third, the need to involve fathers in early child care was stressed,
considering the recorded reluctance of men to take parental leave (in 2005 only 1% of employees
taking parental leave to look after children under the age of 3 were men). The amendments were
well received in Parliament.
3. Other Developments: administrative penalties for breaches of the Equal Opportunities
Act
On the initiative of the Chairman of the Parliamentary Committee on Law and Order, Mr Julius
Sabatauskas, the Lithuanian Parliament has amended Section 41-6 of the Administrative
Penalties Act45 (Law no. X-343 of 27 September 2005 (in force since 13 October 2005)).46 The
amendments aim to introduce administrative penalties for breaches of the Equal Opportunities
Act of 18 November 2003, which is the national legislation implementing EC Directives 2000/78
and 2000/43. It is interesting to note that Section 41-6 also governs sanctions related to the
violation of the principle of equal opportunities for men and women (Equal Opportunities for
Women and Men Act of 1 December 1999).47 The Equal Opportunities Ombudsperson is the
competent body to supervise the general implementation of all national equality legislation. The
legislature by the proposed amendment equates breaches of general anti-discrimination
provisions with breaches of the principle of gender equality by making the same administrative
procedures and fines applicable. The administrative penalties which may be imposed by the
Equal Opportunities Ombudsperson are to remain unchanged. According to Section 41-6 (2) of
the Administrative Penalties Act, penalties range from 100 LTL (29 EUR) to 2000 LTL (580 EUR)
for a first offence, while repeat breaches are punishable by fines of 2000 (580 EUR) up to 4000
LTL (1160 EUR).
On 15 December 2005, the Lithuanian Parliament approved the draft Budget for the year 2006.
According to the draft, funding for the Office of Equal Opportunities will be increased by 30% to
1109K LTL (approx. 321K EUR) compared to the year 2005.
LUXEMBOURG
Viviane Ecker
1. Legislation
A new law of 15 December 2005 on children’s surnames (loi du 15 décembre 2005 relative au
nom des enfants) allows all parents, including unmarried parents, to choose their children’s
surnames. The choice is between the father’s name, the mother’s name or a combination of the
two in the preferred order. If parents are unable to agree on a child’s surname, the option of the
combined names will apply and lots will be drawn at the registration of the birth to decide the
order in which the names are to be combined. Parents can only choose a surname upon
registering the birth of their first child as all subsequent children must take the same surname as
the first child. The new rules will in principle only apply to children born after the law has come
into force. However, during a period of 18 months, all parents will have the right to change the
names of any children born before the law came into force. The new legislation enables the
government to withdraw the reservation which it had made to Article 16 g CEDAW, now that the
common practice by which children automatically received the father’s name is abolished.
A further development is the new Bill for the implementation of Directives 2000/43 and 2000/78
that has been submitted in November 2005 and that replaces the two previous Bills48 which we
45
State Gazette, 1985, no. 1-1.
46
State Gazette, 2005, no. 122-4359.
47
State Gazette, 1998, no. 112-3100.
48
Chambre des deputes, projets de loi nos. 5249 et 5386.
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discussed before. The new Bill provides for the establishment of an Equal Treatment Body, which
will operate independently and cover all grounds of discrimination, including the ground of sex.
2. Case Law
The Labour Court of Luxembourg decided a case concerning the instant dismissal of a pregnant
employee. It held that the employer was justified in dismissing her, as the extent of the worker’s
professional misconduct was such that the employer could not reasonably be expected to keep
her on.49 The law of 1 August 2001 concerning the protection of pregnant women does not
contain special provisions concerning professional misconduct, but the Court reasoned that there
was no difference between the misconduct of a pregnant woman and the misconduct of a normal
worker and that both had to be considered in the same way. Even if the consequences of
dismissal would affect a pregnant woman more severely, this is not a circumstance to be taken
into account as the legislation already provides special protection for pregnant women.
MALTA
Peter G. Xuereb
1. Legislative proposals/Bills: Domestic Violence
A Domestic Violence Bill is set shortly to become the Domestic Violence Act. It is currently
making its way through Parliament, and is at the third reading stage at the time of writing in early
December 2005. The Bill addresses three key issues: legal protection for women, children, the
elderly and persons within the household; active prevention of, and early intervention in, crimes of
violence; adequate provision of support services. A wide definition of domestic violence will cover
emotional, physical and verbal violence and harassment. Once a report has been filed, immediate
steps and procedures will ensue that could only be halted by Court intervention. The Act will also
provide for adequate accommodation for victims. Harsh penalties and provision for the making of
treatment orders feature in the Bill. A Commission on Domestic Violence will be set up under the
Act to ensure coordination and a multi-service approach (see also under ‘News’ below).
2. Recent and pending court judgments
2.1 Termination of contract
A point of principle that can prove relevant also in the gender field is that applied in a recent
judgment of the Court of Appeal. The judgment, in a case on termination of contract, was given
on 23 November 2005 in the case Cavendish Hotels Ltd. v. Jesmond Beck on appeal from a
judgment of the small claims tribunal, and confirmed the judgment of that tribunal. The point of
principle is that a contract of service or collective agreement may not provide for less favourable
conditions of employment than those offered by the law (in this case the Employment and
Industrial Relations Act of 2002). This is the rule as set out in the Act itself, Section 42 of which
provides that if a contract of service or collective agreement provides for any conditions of
employment less favourable than those provided in or under the Act, the latter conditions shall be
substituted for those contained in the contract of service or the collective agreement.
2.2 Action for damages
Another case not yet reported is an action for damages for discrimination on grounds of sex
brought by female employees of the Cargo Handling Company Limited against their employer.
The cause of action is the alleged failure of the company to allocate overtime to the said female
employees while male employees in the same grade were regularly offered the possibility of
overtime work.
3. Official statistics
3.1 National Statistics Office
Interesting new statistics produced by the National Statistics Office (NSO) confirm what has been
unofficially known for a long time, namely that the vast majority of employees working for non-
governmental organisations (NGOs) in Malta are women and that many of these are employed on
49
Cour d’appel, 10 February 2005, cause-list no. 28660.
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a part-time basis. The figures cover the years 2003 and 2004, and the survey covered some 152
social-welfare oriented NGOs. The organisations covered included support and pressure groups
(13.2%), philanthropic groups (30.3%), religious groups (14.5%), homes (18.4%) and other
activity groups (23.7%). More than 30% of these organisations offered some degree of residence
accommodation (permanent or temporary), with 19% of all NGOs surveyed accommodating more
than 20 residents. While it is not possible to extrapolate as to non-social welfare oriented NGOs,
it is clear that this type (social welfare) of NGO is heavily dependent on women employees. The
statistics also cover voluntary work in these NGOs. In 2003, around 6000 people worked as
volunteers in such NGOs and in 2004 the figure was over 6300. Of these over 60% were women.
Of those persons actually employed with such NGOs, 991 were employed on a full-time basis
and 630 on a part-time basis in 2004. Of these the overall percentage of female employees was
75.1% (2003) and 78.1% (2004) for full-time employees, and 80% for part-time employees.
3.2 The impact of parental leave, career break and responsibility leave in the Maltese
public sector
A report on The Impact of Parental Leave, Career Break and Responsibility Leave in the Maltese
Public Sector, published by the Department for Women in Society in 2003, had highlighted that it
is by far women who avail themselves of parental leave and career breaks (98.4% of all take-up).
A EU joint report covering Malta, Lithuania, Iceland and Denmark bears this out. It also indicates
that more Maltese fathers would take up parental leave if remuneration of some kind were made
available. The research is part of a project called Modern Men in an Enlarged Europe: Developing
Innovative Gender Equality Strategies, implemented within the programme relating to the
Community Framework Strategy on Gender Equality. The report points out the need to reduce
the gap between the public sector (where one year parental leave is available) and the private
sector (where the law provides for three months per parent). The Malta partner was the
Employment and Training Corporation. The recent public sector collective agreement in Malta
has somewhat improved the terms for public service employees. A seminar on the subject was
scheduled for 15 December 2005 under the auspices of the Employment and Training
Corporation.
4. News and policy initiatives
4.1 Gender and the digital divide
As part of the proceedings of the Commonwealth Peoples’ Forum, meeting before the
Commonwealth Heads of Government in Malta in November, a seminar was held on the theme of
“Gender and the Digital Divide”. The meeting was also addressed by Minister Dolores Cristina,
Minister for the family and Social Solidarity. Her speech is reported on the Ministry’s website at
http://mfss.gov.mt/ministry/content.asp?id=750.
Reference was made inter alia to the Commonwealth Plan of Action for Gender Equality for the
next ten years. The important contribution of civil society in this area was highlighted.
In June 2005, the National Council of Women (NCW) inaugurated the new NCW Community
Technology Learning Centre (CTLC) as part of the local effort to eliminate the digital divide. While
open to all, the NCW is targeting unemployed women in particular.
4.2 Child-care facilities
The Malta Environment and Planning Authority (MEPA) has approved draft Supplementary
Planning Guidelines on the development of Child Day Care Facilities. These apply to all day care
facilities, nurseries and child-minding facilities. They identify the main planning issues associated
with the provision of child-care facilities. The guidelines were published for consultation with a
deadline of 7 December 2005.
4.3 Seminar on domestic violence
A seminar on domestic violence was held on 6 December 2005 by Amnesty International Malta
Group and the National Council of Women. A spokesperson for the government agency Agenzija
Appogg confirmed at the seminar that “many” such cases were coming to the attention of the
Agency. On 25 October 2005, the Minister for the Family and Social Solidarity launched the
“Protect Your Lips Protect a Life” campaign to raise awareness about domestic violence. The
41

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Campaign is a joint initiative of Agenzija Appogg, Suret il-Bniedem Foundation, and The Body
Shop Malta. It focuses on awareness raising and the provision of information. Agenzija Appogg
offers social welfare services to support the victims of domestic violence. Suret il-Bniedem is a
charitable church-based NGO providing shelters for victims.
5. EU projects
A number of EU-funded projects are under way. For details see http://mfss.gov.mt/eu.
THE NETHERLANDS
Ina Sjerps
1. Legislative developments
On 16 September 2005, the Minister for Social Affairs and Employment published his plans for
the implementation of Directive 2002/73.50 I have reported on the content of these proposals in
my report on the implementation of this Directive (September 2005). In reaction to the
government proposals, the powerful employers’ union VNO-NCW sent an opinion to Parliament
on 21 October 2005.51 VNO-NCW opposes the shift in the burden of proof in sexual harassment
cases, and requests the government to reopen the debate on this issue in the EU. VNO-NCW is
concerned that it will become too easy for employees to start cases against their employers and
fears false accusations from badly functioning employees. VNO-NCW is of the opinion that
victims of sexual harassment are already sufficiently well protected under existing Dutch law.
2. Case law
The district court of Utrecht has ruled in favour of a female solicitor (advocaat) in her case against
an insurance company (Movir). The woman is self-employed. She insured herself against the risk
of illness and disability with Movir. The definition of disability in the insurance policy was such that
it excluded incapacity to work due to pregnancy. Thus, the woman could not insure herself
against loss of income during pregnancy and maternity leave by way of the regular insurance
policy. Movir also offers special insurance for self-employed women against loss of income during
pregnancy/maternity leave, but only under severe restrictions. The company applies a two-year
waiting period and employees have to take out extra insurance overall. The district court found
against Movir on the grounds that it discriminated against women based on pregnancy and
ordered Movir to pay to the pregnant woman a disability benefit during the 16 week period of
pregnancy/maternity leave.52 Movir has meanwhile appealed against the judgment.
3. General developments
3.1 Headscarves
During the past few years, Islamic dress and headscarves for women in particular have been the
subject of fervent public debate. The Dutch culture used to be quite tolerant in this respect, but
since the murder in 2004 of film maker Theo van Gogh by an extremist with a radical Islamic
background the mood has changed dramatically. A recent survey has shown that the majority
(63%) of the population is in favour of the adoption of legislation prohibiting Islamic dress for civil
servants. The same survey held among politicians however showed different results: here, the
majority remain tolerant with regard to civil servants wearing Islamic dress, with the exception of
clothing that covers the entire body.
A few years ago, research showed that the majority of the population shared that view. Citizens
also object quite strongly to teachers (57%), police officers (77%) or members of the judiciary
(81%) wearing headscarves. They interpret the wearing of Islamic dress as a rejection of the
culture and norms of Dutch society.53 Several commentators have voiced the concern that these
50
Tweede Kamer 30237, to be found on www.overheid.nl.
51
See www.vno-ncw.nl.
52
Decision of 15 November 2005, LJN: AU6168,Voorzieningenrechter Rechtbank Utrecht,
202523 / KG ZA 05-1026, on www.rechtspraak.nl.
53
http://www.intermediair.nl/artikel.jsp?id=137744.
42

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developments could seriously affect the chances of women who wear headscarves on the labour
market.
Conversely, the Equal Treatment Commission in a recent case has ruled that an Islamic school
cannot force its female teachers to wear a headscarf to work. As the school did not require its
non-Islamic teachers to wear a headscarf, the school policy was considered discriminatory.54 The
Amsterdam-based school announced that it did not intend to comply with the decision of the
Equal Treatment Commission.55
3.2 Submarines
Following the example of Norway and Germany, the Royal Navy is prepared to allow female navy
members on board submarines. The navy submarine service is one of the few army services
where women are still excluded. State Secretary Van der Knaap is a strong supporter of women
in all army services. Earlier this year, he appointed the first female army general.56
3.3 Policy instruments
Last October, the Ministry of Social Affairs and Employment published a report on “Policy
instruments to enhance compliance with equal treatment rules” which was the outcome of
research done by the Hugo Sinzheimer Institute of the University of Amsterdam.57 The research
compares eight policy instruments as applied in five different EU Member States. The object of
the study was to find out which instruments are the most successful in achieving equal treatment.
On 26 October 2005, the Minister of Social Affairs submitted the report to Parliament
accompanied by a number of conclusions.
3.4 SGP in crisis
The SGP, the orthodox protestant party that refuses to allow women to become full members and
opposes women suffrage, has been in the news frequently since the court decision that the
government must stop paying it the financial contribution due to all political parties as this would
result in supporting sex discrimination. This also has ramifications for cooperation with other
protestant parties. In March next year elections for local government will take place in the
Netherlands. Small parties often cooperate with one another in these elections, so as to ascertain
as many seats as possible in local councils under the present electoral rules.
In a number of local communities, the SGP decided to cooperate with another slightly less
orthodox protestant party, the Christen Unie (CU) for the sake of obtaining the maximum number
of seats. The CU does not ban women from voting or being elected. The board of the SGP
prohibited cooperation with the CU in four towns where the CU had a woman on the list of council
candidates. A number of local SGP party leaders was so enraged over this decision that they left
the SGP.58 In response to this, the SGP board has suspended its decision. For the time being it
will allow cooperation with the CU, even where the CU has a woman candidate on the local list.59
NORWAY
Helga Aune
1. Legislative developments
1.1 The Joint Stock Company Act - requirement that 40% of the members of the Company
Board are women
From 1 January 2006 the regulations under the Joint Stock Company Act, Lov av 13. juni 1997
nr. 45 om Allmennaksjeselskaper, are in force, requiring that at least 40% of the members of the
Company Board are female. The regulations were enacted in 2003, but were accompanied by a
54
Decision of 15 November 2005, www.cgb.nl.
55
Elsevier, 15 December 2005.
56
Reformatorisch Dagblad, 30 November 2005.
57
The report is in English and available on
http://home.szw.nl/actueel/dsp_publicatiesindex.cfm?set_id=340.
58
Noordhollands Dagblad, 9 December 2005.
59
SGP press release, 12 December 2005.
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government declaration that they were not to enter into force immediately. Companies were first
given a chance to fulfil this obligation on a voluntary basis within a two-year time-limit. However,
by July 2005 only 68 of the 519 Joint Stock Companies had fulfilled the requirement. On average
female representation on the Company Boards was 16%. The Government has announced its
intention to propose certain amendments to the Joint Stock Company Act concerning sanctions
for companies who fail to fulfil their obligations. These sanctions will include fines as well as
forced liquidation of the company. See http://odin.dep.no/bfd/norsk/004051-990726/dok-bn.html.
The requirement of a minimum of 40% female representation on Company Boards applies
immediately for companies established after 1 January 2006. Companies established before that
date are given a time-limit of two years to meet the requirement. The Act has given rise to much
debate in the media.
1.2 The Anti-Discrimination Act
The new Anti-Discrimination Act was enacted by Parliament on 3 June 2005. The Act is to come
into force on 1 January 2006 and implements Directive 2000/43/EC. In many cases involving
ethnic discrimination the Gender Equality Act may also be of relevance.60
1.3 The Act on the Gender Equality and Discrimination Authorities
The new Act on the Gender Equality and Discrimination Authorities, Om lov om likestillings- og
diskrimineringsombudet og Likestillings- og diskrimineringsnemnda,
(diskrimineringsombudsloven), is directly related to the legislation discussed above.61 Basically
the system of Ombudsman and Board of Appeals will be continued and expanded. The
Ombudsman is renamed as the Gender Equality and Discrimination Ombudsman and is to
handle complaints under the Gender Equality Act, the Chapters on equal treatment in the
Employment and Working Environment Act, the new Anti-Discrimination Act (implementing
Directives 2000/43 and 2000/78) and the prohibition against discrimination in the various Housing
Acts. In addition the new Ombudsman has to monitor Norway’s compliance with the obligations
arising from the CEDAW and the CERD. The new Board of Appeals will be expanded in size to
manage the increased caseload. The estimated total cost of the Ombudsman and Board of
Appeals is 19 million Norwegian Kroner annually. The Ombudsman and the Board of Appeals are
not competent under the Act to award compensation. This is still only for the courts to decide.
More cases should be brought before the courts so that knowledge of the Act will spread among
lawyers and judges, especially to raise awareness concerning the strict rules on compensation.
Court cases may also serve as a first step towards bringing cases before the EFTA court. So far
the Gender Equality Board of Appeals has not submitted any questions to the EFTA court.
1.4 General information
Directives 2000/78/EC and 2000/43/EC are not a part of the EEA Agreement. As a result, ESA
(the EFTA Surveillance Agency) and the EFTA court are not competent to intervene. This is in
contrast to all the Directives regarding gender equality which are covered by Articles 69 and 70 of
the EEA Agreement.
2. Court cases and the Gender Equality Board of Appeals
There have been no decisions from the ordinary national civil courts relating to gender equality.
The Gender Equality Board of Appeals has delivered several decisions during the fall of 2005 of
which the following may be highlighted:
• Case 24/2005 – The question for the Board was whether a woman had been
discriminated against due to maternity leave (Section 3 of the Gender Equality Act) when
she was made redundant in the course of a down-sizing operation. The employer was a
small company where various tasks were regularly shared between the employees.
Immediately before the down-sizing operation, the job description of the employee on
maternity leave had been determined as being in charge of the computer system, a task
60
http://odin.dep.no/krd/norsk/dok/regpubl/otprp/016001-050049/dok-bn.html.
61
http://odin.dep.no/bfd/norsk/dok.regpubl/otprp.
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for which she could be made redundant. The Board of Gender Equality Appeals found
that the treatment of the employee in question went against the Gender Equality Act, now
that all tasks had been shared between all employees.
3. Policy initiatives and other developments
The Government has announced that it will begin work on a national plan of action for improved
integration and inclusion of immigrants in Norwegian society.62
The focus will specifically be on the employment market so as to enable more immigrants to find
jobs and thus create a solid foundation for more equal living conditions. The press release is brief
and does not elaborate the gender perspective. However, a specific gender-based approach
should certainly be considered in this context, as immigrant women tend to be excluded from the
job market to an even greater degree than immigrant men, which also causes them to be
excluded from social security and pension rights.
POLAND
Eleonora Zielińska
1. Legislative developments: family allowances
Two draft Bills to amend the Law on Family Allowances63 have been submitted to the lower
chamber of the Polish Parliament (Sejm). The first draft of 11 November 200564 proposed the
introduction of a one-time benefit of 1000 PLN (approx. 280 euros) for every child born and
optional financial support from local authorities for childbirth. The second draft of 9 December
200565 presented by the government provided for the one-time benefit of 1000 PLN for poor
families only.
2. Policy initiatives and other developments
2.1 Election
After the September 2005 Parliamentary and Presidential Elections, both of which were won by the
right-wing political party PIS (Prawn i Sprawiedliwość, which means Law and Justice), many policy
initiatives have been undertaken which may have a detrimental effect on equality issues.
2.2 Changes in the organisation of equality bodies
The Sejm in a Resolution of 3 November 2005 amending the Parliamentary Regulations decided
that the existing Parliamentary Committee of Social Policy and Family will be transformed into the
Committee of Social Policy and that the Parliamentary Committee of Equal Status for Women and
Men which was created in the summer of 2005 will be replaced by a Committee for Family and
Women’s Rights. The mandate of this new Committee encompasses dealing with “matters
deriving directly from the functioning of the family and the fulfilment of its roles and tasks, as well
as undertaking legislative initiatives with respect to these issues and matters concerning the
protection of women’s rights, assuring them equal opportunities in professional and social life, as
well as matters connected with compliance with the constitutional principle of equal rights for
women and men”.66
2.3 Abolition of the office of Plenipotentiary for the Equal Status of Women and Men
On 3 November 2005, Prime Minister Marcinkiewicz decided to abolish the post of Plenipotentiary
for the Equal Status of Women and Men held by Ms Magdalena Środa and instead to appoint Ms
Joanna Kluzik-Rostkowska, the Plenipotentiary of the President of Warsaw for Women and
Family, in the post of State Secretary at the Ministry of Labour and Social Policy67 responsible for
62
See press release of 09 December 2005,
http://odin.dep.no/asd/norsk/aktuelt/pressesenter/pressem/046041-070126/dok-bn.html.
63
Law of 28 November 2003, Dz.U. no. 228 item 2255.
64
Parliamentary Print no. 40.
65
Parliamentary Print no. 138.
66
www.sejm.gov.pl.
67
The Ministry of Labour and Social Policy was created through the combination of the tasks of
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family matters. According to a government spokesperson Ms Kluzik-Rostkowska’s new job will
include the tasks previously performed by the Plenipotentiary for the Equal Status of Women and
Men. The Minister of Labour and Social Policy has announced that this will be laid down in new
statutory regulations to be enacted by his Ministry, but these have not yet emerged.
It is difficult to assess whether equal rights will be helped along by the appointment of Ms Joanna
Kluzik-Rostkowska. In her previous office, she has proven her commitment to the issue of equal
opportunities for women and men in employment and to the problem of the reconciliation of family
responsibilities with work. On the other hand, however, she failed to clamp down on discrimination on
grounds of sexual orientation and has been very restrictive on the issue of abortion. At the same
time, however, she has publicly expressed the opinion that assisted reproduction using in vitro
fertilisation should continue to be permitted in Poland. For this, she was criticised by one of the
political parties (the Liga Polskich Rodzin, which means League of Polish Families, abbrev. LPR)
which helped Prime Minister Marcinkiewicz's government to power.68 In order to assuage the
concerns of the LPR, the Prime Minister has promised to appoint a special governmental adviser for
the issue of protection of human life. In addition, the newly appointed Minister of Health, Professor
Religa, has declared that neither assisted reproduction procedures, nor contraceptive pills will be
covered by social health insurance.
Many women’s NGOs as well as gay organisations have sent letters to the Prime Minister to
protest against the abolishment of the office of Plenipotentiary. They argue that to place the issue
of women’s rights in the context of family matters will give rise to renewed stereotyping of women
and fails to promote gender equality.
2.4 Recruitment in the police force
The new recruitment procedure for police officers which is based on an open competition was first
applied last summer. Police authorities were unpleasantly surprised by the results as in their view
too many women have passed the exam as compared to the number of men. “We had to admit
too many women and we have already received alarming reports from local police stations which
do not know what tasks to assign to them, claiming they need big men to do patrols and to
guarantee security during sports matches, but got weak girls instead”. The Chief Constable has
already announced that he intends to change the recruitment requirements for women in the
future by making certain parts of the physical fitness exam the same as for men (e.g. the time
allowed for completion of the obstacle course and the weight of the ball used in the throwing
competition). According to experts this is allowed, as it does not constitute discrimination against
women, but rather granting equal opportunities to men. In 2000, approx. 9500 women were part
of the police force and in 2004 this number had risen to 10500, with women making up some 11%
of the entire force. Still, only 51 of the 1846 local chief constables and deputy chiefs are women.69
3. Developments in general discrimination law: March for Tolerance
The refusal of the Poznań authorities to give permission for a March for Tolerance organised by
feminist and gay/lesbian NGOs and the violent response by the police to a peaceful
demonstration resulting from this decision has led to protests and solidarity marches in many
other major Polish cities. It is claimed that the Poznań authorities’ decision not only violated the
freedom of assembly and of expression, but could also be considered as an act of discrimination
on grounds of sex and sexual orientation.
PORTUGAL
Maria do Rosário Ramalho
1. Legislation
1.1 Main Plan for the Development of Portugal
the Ministry of Social Policy and the Ministry of Economy and Labour by a decree of the Council
of Ministers of 21 October 2005, Dz.U. 2005, no. 220, item 1881.
68
Gazeta Wyborcza, 15 November 2005, Gazeta Prawna, 15 November 2005,
www.serwisygazeta.pl , www.gazetaprawna.pl.
69
Gazeta Wyborcza, 15 November 2005, p. 8.
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During the period covered by this report, legislation related to gender equality has not changed
significantly. However, worth mentioning is the Main Plan for the Development of Portugal which
followed the establishment of the new government as approved by Law no. 52/2005 of 31 August
2005.70 The Plan considers the implementation of equal opportunities as one of the five national
goals of the government. In order to achieve this particular goal, the government intends to adopt
a mainstreaming approach and proposes to promote the following:
- equality between men and women;
- women’s participation in politics;
- the balanced apportionment of tasks to women and men in the framework of reconciling
work and family life;
- the protection of maternity and paternity;
- gender equality in access to education;
- recognition of the diversity of family relations and situations and the implementation of a
national network in order to give support to families where needed;
- the evaluation of all policies, as well as legal and administrative measures from the
perspective of their impact on gender equality;
- the promotion of practical action and cooperation with NGOs in the practical
implementation of the measures planned.
The Plan proposes several concrete measures for implementing the goal of equal opportunities
for men and women, one of which is to transpose Directive 2004/113/EC of 13 December 2004,
and emphasises the role of NGOs and of the Commission for Equality and the Rights of Women
as specific partners in this process.
1.2 Minimum social security benefit
Another development worth noting is the amendment by Law no. 45/2005 of 29 August 2005 of
Law no. 13/2003 of 21 May 2003 concerning the minimum social security benefit.71 Among the
changes introduced is an entitlement to the minimum benefit for pregnant women or mothers
under 18 years old.
2. Case Law
As we have stated in previous reports, one of the clearest indications of the problem of the
practical implementation of the rules concerning gender equality is the lack of case law in this
area. During the period covered by this report, the situation has not changed. However, one
relevant Court decision may nevertheless be reported.
In a decision of 23 February 2005, the Court of Appeal of Porto72 held that the daily food
allowance paid as a salary supplement under the terms of the applicable collective agreement
may be withheld during maternity leave. The Court considered that although this allowance is an
integral part of the salary, it is only due when the work is in fact performed, which is not the case
when a worker is absent on maternity leave. The Court emphasised that the difference in
treatment does not go against the constitutional principle of gender equality, since this principle
does not prevent different treatment in different situations, and this was considered to be the case
here.
The Court in its judgment seems to ignore the wide scope of the concept of remuneration that has
to be taken into account for the purpose of defining gender discrimination and completely fails to
recognise the link between gender equality in employment and maternity.
70
Grandes Opções do Plano, approved by Law no. 52/2005 of 31 August 2005.
71
This state benefit (known as Rendimento Social de Inserção) was created in 1996 and
amended in 2003 by Law no. 13/2003. The benefit is granted to persons and families with very
low incomes.
72
Colectânea de Jurisprudência, 2005, I, p. 155.
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ROMANIA
Roxana Tesiu
1. Legislative developments
1.1. Status of the amendment of the 2002 Equal Opportunities Act
On 8 June 2005, seven MPs initiated a Bill for the amendment of the 2002 Equal Opportunities
Act.73 The Bill’s preamble highlights the five main legal instruments that the proposal intends to
introduce:
- Provisions to bring Romanian equal opportunities legislation in line with the standards
provided under Directive 2004/113 as regards equal treatment between women and men
in the access to and supply of goods and services;
- Instruments for the continuous monitoring of progress in the implementation of legislation
on equal opportunities for women and men in all fields of activity;
- Provisions to enhance the decision-making competence of the National Agency for Equal
Opportunities in the implementation of gender policies. These provisions should ensure
the consistent independence of the National Agency;
- Simplified procedures for imposing penalties in sex discrimination cases;
- Control by the Parliamentary Commissions on Equal Opportunities over the work of the
National Agency. Currently, the Agency’s functioning is supervised by the Ministry of
Labour, Social Solidarity and Family.
In accordance with Article 111 of the Constitution, the Romanian government has formulated a
position on the proposed amendments.74 It declares that it is not in favour of adopting the Bill, but
fails to make clear the legal reasons behind its position, most notably why it opposes bringing the
Romanian legislation on equal opportunities in line with the standards of Directive 2004/113. As
regards the proposed elevation of the position of the President of the National Agency from a
General Director within the Ministry of Labour, Social Solidarity and Family to that of a State
Secretary within the Ministry, the government considers that this would go against Directive
2002/73 where this requires institutional independence in the field of equal opportunities for
women and men. However, it would seem that such institutional independence is ensured even
less by the current lower position of the National Agency’s President in the hierarchy.
2. Policy initiatives and other developments
2.1. The functioning of the National Agency on Equal Opportunities for Women and Men
After more than six months after it began functioning, the National Agency is still completely
invisible to the general public. There is no information available as to where and in which cases to
contact the National Agency, nor does the Agency have its own website. Despite the 2 million
Euro budget allocated through a PHARE twinning project for setting up the National Agency, the
Agency’s staff still uses yahoo e-mail addresses and lacks the basic equipment and infrastructure
to function effectively. Despite formal declarations that Romania has fulfilled the requirements of
Directive 2002/73/EC, no effective structure for implementing the Directive’s standards is yet in
place. As a result, equal opportunities policies in Romania lag hopelessly behind the standard
that is accepted elsewhere in the region.
2.2. Establishment of the National Agency on preventing trafficking in persons and on
monitoring assistance to victims of human trafficking
On 8 December 2005, the Romanian government approved the establishment and organisation
of the National Agency on trafficking in persons which was set up within the Ministry of the
Interior. The National Agency will become operational on 1 January 2006. The Agency’s
President will be appointed by the Minister of the Interior. The National Agency’s main tasks will
be: to elaborate the national strategy on preventing trafficking in persons in Romania and on
assistance to victims; to elaborate draft national standards in the field of trafficking in persons; to
73
BP 326/2005, Legislative proposal on the modification and completion of Law no. 202/2002 on
equal opportunities for women and men.
74
Government Position no. 3007 of 28 November 2005, registered at the Senate’s Permanent
Bureau on 12 December 2005.
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formulate legislative proposals to amend and complete the legal framework in the field of
trafficking in persons.
3. General anti-discrimination law: delays in the approval of the Draft Bill on the prevention
of and fight against all types of discrimination
At the beginning of August 2005, the draft Bill on the prevention of and fight against all types of
discrimination was made public on the site of the National Council on Combating Discrimination
(NCCD). It does not emerge from the wording of this draft that it aims to bring the national legal
framework for combating discrimination in line with the standards provided for in Directives
2000/78 and 2000/43. Based on the comments and observations issued by the Ministry of
Labour, Social Solidarity and Family concerning the draft, it has to be assumed that the draft’s
current text deviates from that made public on the internet. The Ministry has recommended
several amendments to the draft Bill. It proposes that the definitions of ‘positive discrimination’
and ‘sexual harassment’ be brought into line with those provided for by the 2002 Equal
Opportunities Act and suggests that the proposed provisions on shifting the burden of proof are
contrary to the provisions on the burden of proof in the 2002 Equal Opportunities Act, as are
several more of the Bill’s provisions. The Bill has still not been submitted to Parliament.
Generally it may be observed that the entire legislative process in the field of equal opportunities
and anti-discrimination is marked by the lack of political willingness to solve the difficulties
stemming from the parallel functioning of the NCCD and the National Agency on Equal
Opportunities. Despite the obvious difficulties that have emerged in the harmonisation of national
rules on discrimination, no clear political decisions have yet been made, nor have consultations
concerning the expediency of the parallel functioning of the two institutions been held. Meanwhile,
the 2005 activity report of NCCD indicates that of the 214 petitions it received only 5 dealt with
gender-based discrimination. This insignificant number of petitions does not begin to reflect the
actual number of incidents of sex-based discrimination that are taking place in Romania. To sum
up, therefore, despite boasting two national structures for dealing with discrimination on grounds
of sex which are fighting for supremacy in the field, Romanian citizens still lack effective
administrative and legal means to have cases heard. In addition, national policies on combating
sex discrimination or awareness-raising campaigns are completely absent.
SLOVAKIA
Zuzana Magurová
1. Case law
1.1 Constitutional Court
On 18 October 2005, the Slovak Constitutional Court ruled that the Anti-Discrimination Act is
unconstitutional, in particular with respect to Section 8(8) which provides for positive action in
favour of members of ethnic minorities as follows: “With a view to ensuring full equality in practice
and compliance with the principle of equal treatment, specific positive actions to prevent
disadvantages linked to racial or ethnic origin may be adopted”.
Section 12 provides that the Anti-Discrimination Act transposes Council Directives 2000/43/EC,
2000/78/EC and 96/97/EEC amending Directive 86/378/EC.
The Court, four of whose eleven members formulated a dissenting opinion, thereby supported the
viewpoint of the Minister of Justice who had also been opposed to the affirmative action
provisions in the Act, which had been proposed by an MP. The Court’s decision is not yet
reported.
The Deputy Prime Minister for Minorities who prepared the Anti-Discrimination Act has declared
that he will comply with the Constitutional Court’s ruling. He has also observed that the Court’s
decision might open the discussion as to the possible amendment of Article 12 of the
Constitution.
Article 12 of the Constitution currently reads as follows:
“1) People are free and equal in dignity and rights. Fundamental rights and freedoms are non-
deprivable, inalienable, perpetual and irrevocable.
2) Fundamental rights and freedoms are guaranteed to everyone in the territory of the Slovak
republic regardless of sex, race, colour of skin, language, belief and religion, political affiliation or
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other conviction, national or social origin, nationality or ethnic origin, property, descent or other
status. No one may be harmed, preferred or discriminated against on these grounds.”
1.2 Discrimination in access to employment
In November 2005, a claim was brought before a court of first instance by a female
gynaecologist. She claims that she has been discriminated against on grounds of sex in access
to employment as her application for the post of ambulance gynaecologist was rejected in favour
of that of a male applicant who was less well qualified as he had a lower post-graduate diploma
and no supplementing certificates of specialisation.
SLOVENIA
Tanja Koderman - Sever
1. Policy initiatives and other developments
1.1 The Resolution on the National Programme for Equal Opportunities for Women and
Men, 2005-20013 (ReNPEMZM)75
On 27 October 2005, the National Assembly adopted a Resolution on the National Programme
for Equal Opportunities for Women and Men for the period 2005-2013. The Resolution is a
strategic document which defines basic equal opportunities policies and in addition to the
compulsory contents prescribed for all long-term programme documents determines in particular:
• aims and measures for the achievement of goals in individual fields of social life, above
all in the field of employment, social security and health care, education, family relations, violence
against women and representation of both genders in public life;
• responsibility for the implementation of the abovementioned measures;
• the content and the bodies and persons responsible for periodical plans for the
implementation of orientations and tasks from the National Programme in individual fields of
social life.
The Resolution's basic purpose is to define general priorities to improve the position of women
and to ensure the sustainable development of gender equality.
1.2 Recommendation by the National Assembly of the Republic of Slovenia76
The National Assembly of the Republic of Slovenia after having considered the 10th Regular
Annual Report of the Human Rights Ombudsman for the year 2004 adopted a Recommendation
in which, among other things, it urges the government to amend voting laws so as to guarantee
equal opportunities for both sexes in running for elections.
1.3 The 5th Report of the Republic of Slovenia on the implementation of the revised
European Social Charter
The government has adopted the 5th Report of the Republic of Slovenia on the implementation of
the revised European Social Charter for the period from 1 January 2003 to 31 December 2004
and has authorised the Ministry of Labour, Family and Social Affairs to submit the Report to the
Council of Europe. In the Report, the government gives additional explanations of parts of the
revised European Social Charter related to the recommendations of the European Committee of
Social Rights. The explanations concerned e.g. the right of all workers to equal opportunities and
equal treatment in matters of employment and occupation without discrimination on grounds of
sex.
The report was also presented to the social partners who generally agreed with its contents and
emphasised that Slovenia is performing above average in the field of equal pay as compared to
other countries.
75
Resolucija o nacionalnem programu za enake možnosti žensk in moških (ReNPEMZM), Uradni
list RS, št. 100/2005, http://www.uradni-list.si/1/ulonline.jsp?urlid=2005100&dhid=78821.
76
http://www.varuh-rs.si/index.php?id=968#1659.
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1.4 Draft starting points for negotiations on the Social Agreement77
The government has adopted a set of amended draft starting points for negotiations on the Social
Agreement for the period 2006-2009 in its session of 7 December 2005. The chapter referring to
respect of equal opportunities and diversity has not changed as compared with the previous draft
starting points.
1.5 Events organised and projects managed by the Office for Equal Opportunities
• The Office for Equal Opportunities has made a regular analysis of the announcement of
vacancies in the three main daily newspapers in Slovenia in order to asses whether they fulfil the
requirements of Article 25 of the Labour Code which explicitly prohibits announcing posts only for
men or only for women or to give priority to one gender, apart from when the applicant’s sex is an
essential condition for carrying out the work. When the Office made its first analysis in 2003, 88%
of announcements (of a total of 93 advertisements examined) contained infringements and
therefore all employers breaking the law were cautioned and introduced to Article 25 of the
Labour Code and its possible consequences. However, in the latest analysis in August 2005 the
percentage of infringements had dropped to 27% of a total 230 advertisements.78 In order to raise
awareness among employers, the Office for Equal Opportunities has also sent employers
proposals on how announcements of vacancies should be drafted.
• The Office for Equal Opportunities is currently running a project called “Active
Fatherhood”.79 The project is co-financed by the European Commission. The objectives of the
project are: mapping the existing obstacles that may account for the low percentage of fathers
who participate in childcare and take paternity leave and overcoming gender stereotypes and
cultural obstacles that stand in the way of active fatherhood. As part of the project a study was
carried out by the Faculty of Social Sciences entitled “Prospects of new fatherhood in Slovenia:
the influence of paternal leave on active fatherhood” and a media campaign was initiated with the
slogan “Daddy, get involved!”. The campaign and the study were both launched to the media at a
press conference on 2 November.
• On 16 November 2005, the Office for Equal Opportunities organised a conference on the
unequal treatment of women and men in the field of child custody. Mothers are nearly routinely
awarded custody of the children after divorce. The conference was one of several initiatives to
raise the issue of unequal treatment of fathers.80
1.6 Written opinion issued by the Advocate for Equal Opportunities for Women and Men in
the case of Probanka d.d. Maribor81
On 12 October 2005, the Advocate for Equal Opportunities for Women and Men issued a written
opinion in the case of the Slovenian bank Probanka d.d. Maribor. The Advocate found that the
bank’s banning of trousers for women in the workplace constituted unequal treatment on grounds
of sex and recommended that Probanka d.d. Maribor cancels the prohibition. The case had been
initiated by the Association of Free Trade Unions (ZSSS).
1.7 Questions raised by Slovenian citizens on a free toll number at the Ministry of Labour,
Family and Social Affairs
The Ministry of Labour, Family and Social Affairs has opened a free toll number for questions
regarding the Ministry’s field of activity which can be rung every second Monday of the month. On
10 October 2005 a call came in dealing with discrimination of young mothers and women in
77
http://www.sigov.si/mddsz/doc/soc_sporazum_7_12_05.pdf.
78
http://www.uem.gov.si/index.php?id=859.
79
http://www.uem.gov.si/index.php?id=968.
80
http://www.uem.gov.si/index.php?id=818&tx_ttnews[tt_news]=249&tx_ttnews[backPid]=813&cH
ash=00471bdb39.
81
http://www.zsss.si/images/stories/PDF%20socialna%20varnost/ZagovornicaNacelaEnakostiProb
anka.pdf.
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employment. In the caller’s experience, employers often prefer to employ men rather than
women.
1.8 The second session of the Governmental Board for the Implementation of the Principle
of Equal Treatment82
The Governmental Board for the Implementation of the Principle of Equal Treatment met for its
second session during its existence on 12 September 2005. Among the issues raised was that of
the need for an extensive survey into how widespread discrimination is in Slovenian society and
the need for an awareness-raising programme to instil in citizens from an early age the principles
of non-discrimination and tolerance.
SPAIN
Adriana Lozada
1. Draft legislation
1.1 Delay in the drafting of the Act for the Promotion of Equality between Women and Men
The future Act which was initially scheduled for spring 2005 is still being discussed “chapter by
chapter” by the government, which has chosen to consult extensively with various social actors.
The government claims that if the Act would lack the input and support of these institutions it
would probably never be properly applied. The government is confident of being able to reach an
agreement with employers and trade unions soon, in order to start new consultation rounds with
the different administrations and associations, and thus secure the approval of the text by spring
2006. So far, however, the employers cannot agree on the draft where it includes an obligation for
enterprises with more than 250 workers to secure equal percentages of men and women working
for them (i.e. 50% male workers and 50% female workers) throughout all levels, from the lowest
work categories to the members of the Board. Where financial aspects are concerned, a budget
of 200 million euros is reserved under the Act for the implementation of a separate paternity
leave. In addition, the General Secretariat for Equality has announced that the Ministry of Labour
and Social Affairs is to increase its 2006 budget by 7.2% to spend on equality policy, making the
total budget 38.2 million euros.
2. Case law
2.1 Constitutional Court case concerning the right of men to take paternity leave
independent of maternity leave
A judge in Lleida (Cataluña) has brought an action before the Constitutional Court claiming the
autonomous right of fathers to paternity leave, independent of any right to maternity leave of the
mother. The judge considered that the present Section 48.4 of the Workers’ Statute violates
Sections 14, 39 and 41 of the Spanish Constitution. Section 14 states that the principle of equality
is a “higher value”, Section 39 imposes upon the public authorities the obligation to ensure the
social, economic and legal protection of the family, and Section 41 guarantees adequate support
and social security benefits to citizens in need. The background to the case was that the National
Social Security Institute (INSS) had refused to grant a father the right to paternity leave as in the
case in question the mother was not entitled to maternity leave either. Under Section 48.4 of the
Workers’ Statute parents are entitled to 16 weeks’ maternity leave which can be taken
uninterruptedly or complementarily by the mother and the father (except for the six weeks’
compulsory leave for the mother immediately following the birth). The Supreme Court in similar
cases has already ruled that “nobody can share what they do not have”.
3. Policy initiatives and other developments
3.1 Government announces Concilia Plan
As an advance on the future Act for the Promotion of Equality between Women and Men (see
above), the Concilia Plan aims to expand measures for reconciling work and family for employees
in the national administration. The Plan is subscribed to by the Ministry of Public Administration
82
http://www.uem.gov.si/fileadmin/uem.gov.si/pageuploads/SUNEO_zapisnik_seja2.pdf.
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and the main trade unions and is set to become effective in January 2006. It includes among
others the following measures:
a) Limitation of working time: under the plan employees can refuse to work later than 6 pm;
b) 10-day paternity leave: the plan introduces an independent paternity leave of ten days
and the possibility to extend maternity leave by four more weeks (currently 16 weeks) by
accumulating paid time off for breastfeeding;83
c) Flexible hours: Men and women must all be allowed to devote one-third of daily working
time to personal pursuits. Persons with children of under twelve years old in their care will be
able to reduce the hours spent working shifts even more. A right will also be introduced for
workers who care for elderly persons, disabled persons or children under 12 to reduce their
fixed schedules by one hour. As an exceptional and temporary measure, fixed working
schedules may be changed by two hours for the purpose of reconciling work with family. This
latter right is also granted to single parents. A reduction by 50% of working time during one
month may be granted to take care of a first degree relative who is seriously ill. Male civil
servants with disabled children will be allowed a two-hour range of daily flexible working time
to attend special training sessions and will have a right to time off to attend coordination and
support meetings;
d) Special parental leave: The Plan introduces a three-year leave to care for children or
relatives and guarantees the worker’s return to the same position during the first two years;
e) Leave in case of premature birth: Maternity leave will commence the day after release
from hospital;
f) Assisted reproduction techniques: The Plan introduces a right to time off from work for
assisted reproduction treatment;
g) Foreign adoption: In case of foreign adoption, the Plan envisages two months’ paid leave
when it is necessary to travel to the country of origin of the child.
Most of these measures will enter into force on 1 January by Ministerial Decree, although some
like the paternity leave and special leaves have to await the amendment of national legislation,
especially Act no. 39/1999 and the parliamentary procedure accompanying this.
3.2 National Women’s Institute (NWI) commission for the protection of the image of women
in publicity campaigns
The NWI is planning to establish a special commission to watch over the use of images of women
in advertising. The Commission is to be composed of advertisers, enterprises and consumers
associations and is to combat discrimination against women and sexism in the media and other
means of publicity. During the year 2004 the Sexist Publicity Watchdog received 342 complaints,
83
According to the Secretary of State for Equality (21 November 2005) the government is not
adverse to the introduction of a two-week independent paternity leave in the draft Equality Act.
The initial proposal by the government (which was discussing the matter with employers and
trade unions at the time) was to introduce a one-week leave, but the two-week leave was finally
settled on. This measure is said to be an “experimental work-family reconciliation measure” which
aims to “create a demand” from society, rather than inhibiting parents by immediately introducing
a four-week leave, which would take some getting used to by parents of today. Women’s
associations did welcome what they considered a measure which they had had to wait a long
time for, but emphasised that the independent paternity leave should be much longer than 10
days (namely 10 weeks) and should be made available to all workers, including those in the
private sector.
These improvements are expected to be introduced in an amendment to Act no. 39/1999 and/or
during the discussion of the Equality Bill. There have been previous proposals from different
parties for similar amendments of Act no. 39/1999 on the reconciliation of work and family life, but
these have all been rejected in Parliament (for example, a proposal from Izquierda Verde-
Izquierda Unida-Iniciativa per Catalunya Verds in December 2004 and a proposal from the Mixed
Group in April 2004). In recent months, proposals have been postponed whereby Parliament has
argued that the reconciliation measures in question are better accomplished in a comprehensive
way by including them in the future Equality Act.
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which is 47 (7%) less than in 2003. 13% of these complaints were made by men and the majority
concerned the portrayal of women’s bodies in adverts. The Commission is to begin functioning in
the first trimester of 2006 and will issue reports on unacceptable examples.
3.3 Paternity leaves increase by 17.14% in 2005
Even though in the vast majority of cases maternity leave is taken by the mother (in 218,721
cases during the year 2004) more and more fathers are beginning to make use of their now
complementary right to paternity leave. During the first nine months of the year 2005, a total of
3,992 men applied for this leave, which is 17.14% more than during these same months in the
year 2004, when only 3,408 fathers applied for this leave.
SWEDEN
Ann Numhauser-Henning
1. Legislation
1.1 The Swedish parental benefits scheme and equal opportunities
Last year, an investigations committee was assigned the task of assessing the social insurance
parental benefit scheme. One objective was to distribute the use of these benefits more evenly
among the sexes.84 The investigations committee has now put forward its findings.85
One suggestion is to introduce a new ‘pregnancy benefit’ for the last 30 days of pregnancy. The
reason behind this proposal is the current differences in the application of sickness insurance in
the case of pregnancy throughout Sweden. Where the parental benefit scheme is concerned, it is
suggested to increase the period during which a benefit is received at sickness insurance level
from 13 to 15 months. This time is still to be divided between the parents but five months (as
compared to two months at present) will not be transferable. Parental benefits for women and
men will be allowed to overlap to a greater degree. It is also proposed to change the age-limit for
children up to which parents are entitled to parental benefit from 8 to 4. The proposals are
intended to enhance small children’s chances of developing an early and close relationship with
both their parents.
The report is now subject to consultations. The government has, however, already declared its
unwillingness to go forward with the main proposal, i.e. the non-transferability during five months
of the benefit.
2. Case law
2.1 Judgment of the Swedish Labour Court, Case 2005 no. 87 (AD 2005:87), the Equal
Opportunities Ombudsman (EOO) v Volvo Personvagnar
Volvo’s hiring policy stated that for safety reasons, employees must be between 5 feet 4 inches
(163 centimetres) and 6 feet 5 inches to work at the conveyor belt at its car manufacturing plant
outside Gothenburg in Sweden. A woman, measuring 5 feet 3 inches, was denied employment
for being too short.
The EOO argued that the length requirement was to the detriment of women and, though
objectively justified by a legitimate aim, neither appropriate nor necessary. The employer, on the
other hand, argued that, though to the detriment of women, the requirement was justified by
safety reasons (to avoid certain industrial accidents) making it both appropriate and necessary.
The parties thus both agreed that the requirement was to the detriment of women since it
excluded about 25% of all women from employment with Volvo as compared to only around 2%
of men. The EOO had thus proven a prima facie case of indirect discrimination. Scrutinising the
evidence concerning job safety, the Labour Court found that Volvo had not convincingly proven
that the length requirement was an appropriate and necessary means in proportion to the
disadvantage produced for women. The Court therefore held that Volvo was guilty of indirect
discrimination and ordered it to pay 40000 SEK ($ 5200) in damages, which is the usual amount
in discrimination cases.
84
Dir. 2004:44.
85
SOU 2005:73, Reformerad föräldraförsäkring – kärlek, omvårdnad, trygghet, Stockholm 2005.
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2.2 Judgment of the Swedish Labour Court, Case 2005 no. 92, Svenska
Pappersindustriarbetareförbundet v Assi Domän
This case concerned a male employee with the firm Assi Domän, which is a company in the
foresting industry. According to the Swedish (1995:584) Parental Leave Act an employee is
entitled to parental leave in the form of reduced hours (up to 75% of working time) until the child
is 8 years old. The distribution of the working time is to be agreed between the parties. If
agreement cannot be reached the employer has to comply with the wishes of the employee
unless this results in ‘considerable obstacles to the performance of the employer’s activities’. The
work at Assi Domän was carried out in shifts. The employee demanded to be free Monday-Friday
and work only Saturday-Sunday shifts, amounting to 75% part-time employment. Although the
Court recognised that these reduced hours were likely to cause complications in the case of
continuous shift work, the employer had not established the presence of ‘considerable obstacles’.
The employer could not, for instance, demonstrate that he had even attempted to hire a part-time
replacement. The employer was found to have breached the 1995 Act and ordered to pay
(modest) damages.
3. Policy initiatives and other developments
3.1 New Feminist Party arising out of a Feminist Initiative
A ‘Feministiskt Inititativ’ (FI) was established earlier this year by a group of women including the
former leader of the Swedish Left Party, Gudrun Schyman. At its first convention in mid-
September, FI decided to form a new political party and to stand for election in the 2006
Parliamentary elections. FI has political ambitions ‘beyond the traditional left-wing and right-wing
dimension’ challenging the patriarchal system as such. Gudrun Schyman is one of three
‘spokespersons’ for the new party. To be represented in the Swedish Parliament any party needs
at least 4% of all votes in the election. See for further details the webpage
www.feministisktinitiativ.se (Swedish only).
UNITED KINGDOM
Christopher McCrudden
1. Legislative developments: Equality Bill
The Government’s Equality Bill is continuing to progress through Parliament. This is the Bill that
will amalgamate the existing equality bodies (including the Equal Opportunities Commission) into
one equality body for Great Britain. The Bill also includes the new gender equality positive duty.
2. Court cases
2.1 Refusing requests to work part-time and sex discrimination
The Employment Appeals Tribunal has upheld the decision of an employment tribunal that British
Airways discriminated against a woman pilot by denying her request, following her return to work
after maternity leave, to work 50% of full-time due to child-care requirements, and requiring 75%
of full-time at least, was unlawful indirect sex discrimination. British Airways had argued that not
allowing her to work part-time at 50% of full time was not a “provision, criterion or practice”, that
there was insufficient evidence that this was detrimental to women, and that the requirement was
justifiable due to safety reasons. The EAT rejected these arguments, holding that the requirement
to work at least 75% of full-time did amount to a “provision, criterion or practice”, even though it
was a one-off decision applying to a single person. The EAT also held that the tribunal was
correct in taking into account all the evidence relating to detriment and not just statistical
evidence, and that the tribunal had correctly considered all the issues relating to justification.86
2.2 Sex discrimination and Ministers of Religion
A female former Church of Scotland minister who argued that she was forced out of her job as a
minister after being accused of having an affair with a married church elder won the right to claim
compensation for sex discrimination. By a majority, the House of Lords held that Helen Percy
could bring a claim against the Kirk (Church) before an employment tribunal, despite an argument
86
British Airways plc v Starmer [2005] IRLR 862.
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by the Church that she had no contract of employment and that the nature of the complaint was
of a spiritual nature. The case raised two main legal issues. The first was whether Ms Percy's
relationship with the church constituted “employment” as defined in Section 82(1) of the Sex
Discrimination Act 1975. The second issue was whether Ms Percy's discrimination claim
constituted a spiritual matter within Section 3 of the Church of Scotland Act 1921 and, as such, it
was within the exclusive cognisance of the Church of Scotland and its own courts. By a 4-1
majority, the Lords held that Ms Percy was employed by the Board of National Mission under a
contract personally to execute work within the meaning of Section 82(1) of the 1975 Act, and that
the employment tribunal’s jurisdiction was not excluded by the 1921 Act. The proceedings should
be remitted to an employment tribunal to proceed with the claim accordingly. In these
circumstances it was not necessary to deal with further, wide-ranging arguments advanced on
behalf of Ms Percy based on Community law.87
2.3 Establishing equal pay defences
The Employment Appeals Tribunal has considered the implications of the ECJ case of
Brunnhofer v Bank Der Osterrichischen Postparkasse for UK equal pay cases. Amanda Sharp
was employed by Caledonia Group Services as a financial accountant. In August 2002, she
brought a Tribunal case claiming she was receiving unequal benefits (pay, bonus, company car,
share options and medical insurance) compared to one of her male colleagues doing work of
equal value. In its defence, the firm argued that “historical considerations” justified the higher pay
of her male comparator. The Tribunal dismissed all of Ms. Sharp's claims, except the sex
discrimination claim regarding the bonus, and accepted Caledonia's defence. It was of the view
that the difference in pay between Ms Sharp and her comparator was due to a genuine material
factor, which was not related to the difference in sex. Ms Sharp appealed the decision on the
basis that when considering Caledonia's defence the Tribunal failed to take into account the
Brunnhofer case. The EAT held that to establish an objective justification, the employer must
show that the reason for the difference in pay is unrelated to sex, the reason responds to a real
need of the employer, the reason was appropriate to achieving the objective pursued, it was
necessary to that end, and the difference conforms to the principle of proportionality.88 In this
case, permission has been given to appeal to the Court of Appeal, but no judgment has yet been
issued by the Court of Appeal.
3. Policy initiatives and other developments
3.1 Women-only shortlists of Parliamentary candidates
The issue of the representation of women in the UK Parliament has come back into the news
over the past few months. The governing Labour Party is currently the only major party so far to
adopt all-women lists, and female Labour MPs now account for 77% of all women in Parliament.
A well-regarded independent policy committee (the Hansard Society) recommended in November
to all political parties to adopt a policy of all-women shortlists, saying it is \"vital\" for Britain's
political future. It recommended that all parties implement \"equality guarantees\" to ensure parity
in parliament, and that such measures are needed to ensure political representation is just and
fair. The election of a new leader (David Cameron) of the main opposition (Conservative) party
has further contributed to the discussion. On his election, he argued that substantial changes
would have to be introduced to address the under-representation of women Conservative
Members of Parliament. He has now introduced a system that establishes an 'A-list' of top
candidates to target the safest seats, and ensuring that half of these are women, but stopping
short of all-women shortlists.89
87
Percy v. Church of Scotland Board of National Mission [2005] UKHL 73, on
http://www.parliament.co.uk.
88
Sharp v Caledonian Investments (EAT).
89
http://www.eoc.org.uk/Default.aspx?page=18118&lang=en.
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3.2 New head of Equal Opportunities Commission
Jenny Watson has been appointed by the Government to head the Equal Opportunities
Commission. She was first appointed as a Commissioner of the EOC in 1999, as Deputy Chair
from 2000 and Acting Chair from July 2005. Watson is a director of Global Partners and
Associates. She has broader consumer interests as the Deputy Chair of the Banking Code
Standards Board, and is a member of the Advertising Standards Authority's Advertising Advisory
Committee. She sits on the Council of the Women's Library at London Metropolitan University,
and is a former Chair of Fawcett, a not-for-profit organisation campaigning for equality between
women and men. She has over 20 years' experience at leading successful campaigns in the not-
for-profit sector including senior roles at Charter88 and Victim Support.
57