EUROPEAN UNION LAW: PROBLEM QUESTION
Ms Lullaby is an employee at Perfect Mobile, a company which provides services to owners of electronic devices. These services include giving advice via phone and email. The company is based in Worriland (a fictitious Member State of the European Union). PerfectMobile is the main company providing such services to the public in Worriland and the State holds more than 50% of its capital.
Ms Lullaby has been working for PerfectMobile as a phone operator for more than 15 years. Article 13 of PerfectMobile’s Rules of Procedure provides that once female employees reach the age of 55, they can no longer work as phone operators on the grounds that ‘their speech becomes slower than that of male employees and they therefore tend to deal with fewer client queries by phone’. PerfectMobile introduced this new provision to its Rules of Procedure following the conclusions of an independent expert report commissioned by PerfectMobile in 1993 with the aim of increasing its productivity. Article 13 of the company’s Rules of Procedure also provides that all female employees over the age of 55 will automatically be moved to a new position within the company in which they are only allowed to provide advice by email. This means that they will receive a slightly lower salary compared to the salary they used to receive as phone operators.
Ms Lullaby celebrated her 55th birthday on 1 April 2021, and on 2 April 2021 she received a letter from the Human Resources Department at PerfectMobile stating that she was no longer allowed to provide advice to clients by phone and that she had to start answering their queries via email. In addition, the letter also mentioned that her salary would be cut by 2.5%.
Ms Lullaby was very unhappy with this letter. She first complained to the Equal Opportunities Committee of PerfectMobile, arguing that this treatment amounted to discrimination on the basis of both her gender and her age, and that this was illegal. The Equal Opportunities Committee rejected her complaint, claiming that the measures were authorised by Article 3 of national Act 26/2008 adopted on 10 June 2008 to transpose Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. The deadline for transposing the Directive was 15 August 2008. Article 3 of national Act 26/2008 states that unequal treatment between men and women in the fields of occupation and pay may be permitted by companies looking to increase their productivity if the need for such differentiated treatment is substantiated by an independent expert report. Worriland had justified the adoption of this measure by economic policy considerations in the aftermath of the severe economic and financial crisis it faced in the 2000s.
Following this rejection from the Equal Opportunities Committee, Ms Lullaby has decided to bring a case against PerfectMobile before the local labour court asking to be immediately reinstated to her previous job and claiming compensation for the losses she incurred as a result of the company’s decision to alter her working conditions. She especially argues that she has suffered dual discrimination on the basis of her gender and age. She contends that Article 3 of national Act 26/2008 is incompatible with Article 14 of Directive 2006/54/EC. PerfectMobile is not worried as it claims to be a private employer and it believes that the Directive cannot impose obligations on it.
Question: Advise Ms Lullaby as to whether she may rely on the Directive and European Union Law before the local labour court and why.
Indicate clearly all the sources used in your assignment in the FOOTNOTES. To refer to the case law of the Court of Justice of the European Union, you may either use the same style or the referencing style used in the slides of the lectures. Either way, do not forget to mention the European Case Law Identifier (ECLI).
