EC: New equal treatment Directive opens up EU anti-discrimination framework
The Directive establishing a general framework for equal treatment in employment and occupation was formally adopted by the Council of Ministers on 27 November 2000, almost exactly one year after it was first proposed by the European Commission. The Directive, which must be implemented in member states by 2 December 2003 - or 2 December 2006 in the case of the age and disability discrimination provisions - outlaws discrimination on a wide range of grounds, considerably extending the EU-level framework for protection against discrimination. We look at the Directive in detail.
Background
The European Commission first issued its package of three anti-discrimination measures - comprising two draft Directives and a proposal for a Decision to establish a Community action programme to combat discrimination - on 25 November 1999. The proposals were based on the new Article 13 of the Treaty of Amsterdam, which provides for the drawing up of proposals aimed at combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
Although the Treaty of Amsterdam had come into force on 1 May of that year, the issuing of these Article 13 proposals had been delayed somewhat following the resignation of the European Commission in March 1999 and the subsequent appointment of a new Commission in September of that year.
The first draft Directive in the package - a proposal aimed at implementing the principle of equal treatment irrespective of racial or ethnic origin - was adopted with relative swiftness. The employment and social policy Council reached political agreement on the text on 6 June 2000 and formal adoption followed on 29 June 2000. For the full text of this Directive, which appeared in the Official Journal on 19 July 2000.
The second Directive, the scope of which was wider and therefore more controversial, was expected to be the focus of lengthy debates in the Council. In particular, it was expected that the provisions relating to discrimination based on age, disability and sexual orientation would prove difficult for member states to accept.
However, the text was considerably revised by the Commission following the adoption of the race Directive - in particular, the provisions in the framework Directive which relate to discrimination based on racial or ethnic origin were taken out of the text, as this area is covered by the race Directive. Consequently, political agreement on the revised text was reached on 17 October 2000 and formal adoption followed on 27 November 2000. The text appeared in the Official Journal on 2 December 2000. The accompanying Decision establishing a Community action programme to combat discrimination was also formally adopted on 27 November.
The Directive in detail
Purpose
Article 1 sets out the purpose of the Directive, stating that it attempts to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of:
Thus, the reference to discrimination based on racial or ethnic origin, which previously had been included in the draft proposal, is taken out of the finished text, on the grounds that the race Directive adopted in June 2000 "already provides protection against such discrimination".
Concept of discrimination
Article 2 states that the principle of equal treatment covers both direct and indirect discrimination. It defines direct discrimination as occurring where "one person is treated less favourably than another is, has been or would be treated in a comparable situation".
It defines indirect discrimination as occurring where "an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage" unless this is objectively justified or - in the case of disability - there is a national obligation to take appropriate measures in order to eliminate disadvantages, ie positive action measures. Both of these definitions contain more detail than those included in the original draft proposal.
Article 2 also contains a definition of harassment, which is included as a form of discrimination under the scope of the Directive as "when unwanted conduct ... takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment", although it goes on to say that the concept of harassment may be more narrowly defined by member states.
Scope
Article 3 states that the Directive applies to both the public and the private sector and covers the following areas:
This article then lists a number of provisos not originally included in the draft proposal. It states that it does not cover differences of treatment based on nationality and is without prejudice to provisions relating to the entry into and residence in member states of third-country nationals and stateless persons.
It also does not apply to payments made by state social security or social protection schemes. Further, member states may provide that the Directive's provisions relating to age and disability do not apply to the armed forces.
Occupational requirements
As in the draft proposal, Article 4 permits member states to allow a difference of treatment if by reason of the nature of the particular occupational activities concerned, or the context, this constitutes a "genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate".
In a proviso relating to existing custom and practice in member states, it states further that member states may provide for legislation which allows for a difference of treatment based on a person's religion or belief if this is related to occupational activities within churches and other organisations whose ethos is based on religion or belief and that a person's religion or belief constitutes a "genuine, legitimate and justified occupational requirement". It also allows churches and other organisations whose ethos is based on religion or belief to require their workers to "act in good faith and with loyalty to the organisation's ethos."
Disabled persons
The final text of the Directive inserts a new article 5, relating specifically to "reasonable accommodation" for people with disabilities. It states that employers should take "appropriate measures" to ensure that disabled people can benefit from the provisions set out in this Directive, unless this imposes a "disproportionate burden" on the employers - the burden shall not be held to be disproportionate if it can be remedied by measures which exist within the framework of national disability policy.
Differences of treatment on grounds of age
Article 6 is devoted to the instances in which differences of treatment on grounds of age may be justified. It states, firstly, that member states may provide that differences of treatment on grounds of age will not be discriminatory if these are "objectively and reasonably justified" by a legitimate aim within the context of national law. This may include areas such as employment policy and labour market and vocational training objectives. It then gives a non-exhaustive list of circumstances in which differences of treatment may be justified:
In addition, it states that that member states may provide that fixing age limits regarding admission to occupational social security schemes, or age limits on entitlement to retirement or invalidity benefits, will not be discriminatory. Further, member states may also provide that the use of age criteria in actuarial calculations does not constitute age discrimination, provided that this does not result in sex discrimination.
Positive action
Article 7 constitutes a positive action clause, allowing member states to maintain or adopt any specific measures aimed at preventing or compensating for disadvantages linked to discrimination on the grounds covered by this Directive. However, it also states that with regard to people with disabilities, member states should have the right to maintain or adopt provisions relating to health and safety at work and provisions safeguarding or promoting the integration of disabled people into the working environment.
Minimum requirements
Article 7 safeguards the right of member states to introduce or maintain provisions which are more favourable than those contained in this Directive and states that the implementation of the Directive's provisions should not lead to a reduction in existing protection afforded by national legislation.
Defence of rights
Article 9 obliges member states to ensure that judicial and/or administrative procedures are available to all persons who feel that there has been a failure in applying the principle of equal treatment to them, even after the end of the relationship in which discrimination is alleged to have occurred. Further, member states should ensure that associations, organisations or other legal entities which have an interest in ensuring that the provisions of the Directive are adhered to, may engage in any relevant judicial and/or administrative procedure. An added paragraph states that this is without prejudice to national time limits for bringing equality actions.
Burden of proof
Article 10 states that if a person establishes a prima facie case of direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. Member states may introduce rules of evidence which are more favourable to plaintiffs. These provisions do not apply to criminal procedures.
Victimisation
Article 11 obliges member states to introduce into their national legal systems measures which protect employees against dismissal or any other adverse treatment by the employer as a reaction which follows a complaint within the undertaking, or any ensuing legal proceedings.
Dissemination and social dialogue
Article 12 obliges member states to take care that this Directive's provisions and any other relevant national provisions are widely and appropriately disseminated. A provision obliging member states to ensure that competent public authorities are informed of all national implementing measures relating to this Directive has been omitted.
Article 13 obliges member states, in accordance with national traditions and practice, to promote dialogue between the social partners in order to foster equal treatment. This would include the monitoring of workplace practices, collective agreements and codes of conduct and the exchange of experience and good practice. A clause in the original draft relating to the conclusion of collective agreements has been qualified somewhat. The final text states that, where consistent with national traditions and practices, member states should encourage the social partners to conclude - at the appropriate level - anti-discrimination agreements in fields which fall within the scope of collective bargaining, respecting the minimum requirements of this Directive and national implementing measures.
An extra clause has been inserted, stating that member states should encourage dialogue with appropriate non-governmental organisations, with a view to promoting the principle of equal treatment.
Particular provisions concerning Northern Ireland
Specific provisions relating to Northern Ireland are set out in article 15 as an addition to the original draft. Firstly, it states that differences in treatment regarding recruitment - including support staff - into the police service of Northern Ireland shall not be considered as discrimination if they aim to tackle the underrepresentation of one of the major religious communities in the service and this is expressly authorised by national legislation. In effect, this will allow positive discrimination in favour of Roman Catholics, as provided for by the Police (Northern Ireland) Act.
Secondly, provisions relating to discrimination based on religion or belief will not apply to the recruitment of teachers in schools in Northern Ireland if this is expressly authorised by national legislation. This is aimed at maintaining a balance of opportunity in employment for teachers in Northern Ireland and furthering the "reconciliation of historical divisions between the major religious communities there" - schools in Northern Ireland are still largely organised according to Protestant or Catholic religious beliefs.
This article was inserted in order to ensure that the operation of specific UK legislation relating to the religious situation in Northern Ireland may be maintained.
Compliance and sanctions
Article 16 obliges member states to ensure that any laws, regulations and administrative provisions which are contrary to the principle of equal treatment are abolished and that any contractual or collectively agreed provisions, internal rules of undertakings, or rules governing independent occupations and professions and workers' and employers' organisations which are contrary to the principle of equal treatment are either declared null and void or amended.
Member states are also obliged, under article 17, to lay down sanctions, relating to infringements of the national implementing provisions which are effective, proportionate and dissuasive.
Implementation
Members states will have three years - until 2 December 2003 - to comply with the provisions of this Directive, with the exception of the provisions relating to discrimination based on age and disability, where they may have, if necessary, a further three years - ie until 2 December 2006. The original implementing period contained in the draft was two years for all provisions. If member states choose the six-year implementation period, they must report annually to the Commission on the steps they are taking to tackle age and disability discrimination.
The Directive entered into force on 2 December 2000, the day it was published in the Official Journal.
Impact in member states
The impact of the Directive is likely to vary considerably across the EU member states. In some countries, such as Ireland, extensive equality legislation predates the Directive - the Equality Act 1998 (International: German labour costs still highest) already outlaws discrimination on a range of grounds, including all those covered by this Directive. In France, new legislation has recently entered into force which is likely to meet most of the demands of this Directive. The new French legislation, adopted towards the end of 2000, extends the scope of French discrimination law to cover discrimination based on sexual orientation, physical appearance and surname.
In the UK, the impact of the legislation is expected to be relatively limited, due to existing legislation relating to discrimination based on disability and race. The UK government has also been very successful in ensuring that the Directive does not conflict with existing legislation governing discrimination in Northern Ireland.
According to the IRS journal Equal Opportunities Review (EOR), the main effect of the Directive is most likely to be felt in terms of age discrimination, where there is currently no UK legislation - a voluntary code of practice relating to age discrimination has been in operation in the UK since the middle of 1999. The UK will also be obliged to legislate on discrimination based on sexual orientation. In addition, the Directive is expected to result in an increase in protection against discrimination on grounds of religion in Great Britain (Northern Ireland is covered by separate legislation in this field). The largest ethnic minority in Great Britain is the Muslim community: "In respect of direct discrimination, it will allow claims to be brought by Muslim women, for example, who are subjected to harassment because of their dress or attire. As regards indirect discrimination, practices which fail to accommodate the need for time off to observe religious holidays will be subjected to scrutiny."1
However, many other countries will be obliged to amend their existing legislative framework, which in many cases relates largely to discrimination based on sex - a situation which is reflected in the fact that the EU statutory framework also only covered sex discrimination until this year. This process is now beginning in some countries, such as Denmark, which has recently drafted a law prohibiting discrimination based on age.
Reactions to the Directive
The European Trade Union Confederation (ETUC) has welcomed this Directive, along with the Directive which deals exclusively with discrimination based on racial and ethnic origin, characterising them as "an indispensable first step and an important tool in the fight against discrimination". In particular, the ETUC believes that the inclusion of harassment in the scope of the Directive, the distinction between direct and indirect discrimination, the fact that associations can institute legal proceedings and the shifting of the burden of proof onto the defendant is a real step forward.
Nevertheless, the ETUC notes that the real test of the Directive will be in its implementation, and has a number of concerns. Specifically, it would like to see the drawing up of a specific Directive in the area of discrimination which would form part of European legislation on health and safety at the workplace. It would also like to see the framework Directive supported by a range of specific Directives which deal with the different forms of discrimination outlined in the framework text.
In terms of social dialogue, the ETUC would like to supplement the Directive with agreements between the social partners at European level and also at sectoral level and the level of individual enterprises. The ETUC is also concerned that the Directive does not prohibit differences of treatment based on nationality.
The private sector employers' organisation UNICE has declared its support for the goal of combating discrimination and in general welcomes general EU-level frameworks as long as there is sufficient margin to take account of member states' particular legal situations and traditions.
However, UNICE is critical of the fact that the Commission did not consult the social partners on this issue before issuing its package of discrimination proposals - including the proposals for two Directives - in 1999. Specific UNICE concerns about the Directive include the question of whether there is a need for a "horizontal" approach to non-discrimination - UNICE maintains that the different types of discrimination covered by the Directive correspond to different problems "and require a differentiated approach". In particular, it maintains that age-related questions are more related to labour market policies than anti-discrimination policy and that applying indirect discrimination to disability may raise problems of application. UNICE also feels that a reversal of the burden of proof implies a significant modification of member states' legal systems and may lead to an increase in the number of court cases.
1For a full overview of the implications of this Directive for the UK, see EOR no.95, pp.32-36, available from IRS.
