Case Notes
| Published date | 01 March 1995 |
| Date | 01 March 1995 |
| DOI | 10.1177/135822919500100107 |
| Author | Vera Sacks |
International Journal
of
Discrimination
and
the
Law,
1995, Vol. 1,
pp.
77-81
1358-2291!95 $10
© 1995 A B Academic Publishers. Printed in Great Britain
CASE NOTES
1Case C-189/91, Petra Kirsammer-Hack v Nurhan Sidal
A contemporary issue
of
crucial importance in indirect discrimination
cases is the attitude
of
the court, at both national and Community
level to the defence based on justification. When can rules, require-
ments
or
conditions which discriminate on the basis
of
gender be
justified? The Kirsammer-Hack case raised, inter alia, this question,
and although in the event a ruling on this issue was not required, it
is interesting that the court chose to comment on the question.
FACTS
Petra Kirsammer-Hack was employed as a medical assistant in
Nurhan Sidal's dental surgery and worked 10 hours per week. There
was another part-time employee in the surgery working more than 10
hours per week and two full-time employees. There were four other
employees working less than 10 hours per week or 45 hours per
month.
When she was dismissed on the grounds that she was unpunc-
tual, showed little professional conscience, and her work was
of
an
unsatisfactory
quality,
she
sought
to
complain
of
unfair
dismissal
in
accordance with the relevant German legislation. Her employer how-
ever, maintained that she was precluded from doing so as the right
to complain against unfair dismissal was not applicable to
her
prac-
tice by virtue
of
the exemption in the relevant German legislation in
respect
of
small employers, defined as those where five, or less than
five employees are generally employed. In order to determine the
number
of
people employed for this purpose, no account is to be
taken
of
employees whose working hours do not normally exceed 10
hours per week or 45 hours per month.
By order
of
3 May 1991, the Arbeitsgericht Reutinglen (Labour
Court) referred two questions to the European Court for a prelimin-
ary ruling under Article 177 EEC on the interpretation
of
Article 92
EEC and
of
Articles 2 and 5
of
Directive 76/207
of
9 February 1976
concerning the implementation
of
the principle
of
the equal treatment
for men and women as regards access to employment, vocational
training and working conditions. Small businesses are defined under
the Law on the Protection Against Dismissal (the KUndigungsschuts-
gesetz (the KSchG), as those which have FIVE or less full-time
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