EU Employment Framework Directive: An EOR Guide

Age discrimination in employment and discrimination on grounds of sexual orientation are to be barred by Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.

The new Directive is the most important European discrimination legislation since the 1976 Equal Treatment Directive. It also covers discrimination on grounds of religion or belief and disability discrimination. EU Member States must implement the provisions on sexual orientation and religious discrimination by 2 December 2003. Member States have until 2 December 2006 to legislate on age and disability discrimination.

The Directive prohibits both direct and indirect discrimination on each of the stated grounds. Direct discrimination is defined as where "one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to". This permits hypothetical comparisons.

Indirect discrimination is defined in the same way as in the Race Discrimination Directive (EOR 93). This is a somewhat different definition from that which will be introduced into the Sex Discrimination Act as a result of implementation of the Burden of Proof Directive. One of the reasons for this is that the Burden of Proof Directive will be implemented under the European Communities Act, and thus must not go further than the wording of the Directive. It will be unsatisfactory to have different definitions of indirect discrimination for sex discrimination and sexual orientation discrimination, for example, but this could be avoided if the Employment Framework Directive is implemented by primary legislation amending the other discrimination statutes.

The full text of the Employment Framework Directive is set out below. There were some important changes from the draft Directive published in EOR 90, particularly as regards the provisions on age discrimination and disability discrimination.

Age discrimination

Easily the most significant aspect of the Directive, in terms of its impact on the world of work, will be the prohibition on discrimination on grounds of age. Employers will have to review a wide range of policies and practices that are potentially age-discriminatory. The prohibition on age discrimination is likely to spell the end of arbitrary age ranges for recruitment and bring about the demise of compulsory retirement ages. It will still be lawful to dismiss older workers who cannot meet the employer's performance or attendance standards. But that assessment, in the ordinary case, will have to be made on an individual basis. Dismissal of older workers, in essence, will have to be for cause.

Scope

When the Directive is implemented, age discrimination legislation is likely to be the next great growth area for litigation. There are several fundamental reasons for this. First, the prohibition itself is framed very widely. Subject to certain possible exceptions discussed below, what must be made unlawful is direct or indirect discrimination on the grounds of age. Thus, the Directive is not confined to discrimination against older workers, or in respect of workers within a specified age group such as those between ages 40 and 65. It has no upper age limit beyond which the protection no longer operates. Nor, unlike the United States legislation, for example, are there any exceptions in respect of senior managers in high policy-making positions. This means that everyone will be protected by the new right, not just at certain times of their life, but whenever they are in the labour force.

Secondly, experience in other countries with age discrimination legislation suggests that the volume of litigation will be comparatively high. This is because workers who think they have been discriminated against on grounds of age normally will know their legal rights and will have the resources to pursue them.

That said, the drafting of Article 6 is permissive. It allows Member States a fair degree of latitude in deciding when age discrimination is to be regarded as capable of being justified. This accords with the general principle that this is a framework Directive. In particular, Article 6 specifies that "Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary."

When age discrimination will be justified

Article 6 allows the Government, when transposing the Directive, to legislate to provide employers with a defence to a claim of age discrimination by enabling the employer to show that a difference in treatment was objectively justified.

A flavour of the exceptions that are likely to be regarded as permissible can be derived from Article 6, which specifically mentions four age-based differences in treatment as capable of being allowed. One of these essentially allows positive discrimination: special conditions in respect of certain age groups "in order to promote their vocational integration or ensure their protection".

A second exception allows for "the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or certain advantages linked to employment." This will allow jobs to be advertised as requiring a certain number of years professional experience or for promotions to be linked to service in the grade below. It will also safeguard age or service-based incremental salary scales.

One of the negative forms of discrimination which may be permitted is "the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement." This allows an employer to recoup its training and/or recruitment costs. By inference, however, a maximum age for recruitment which was not based on such criteria, or at least which was not objectively justifiable on grounds of similar weight, will not be permissible.

It seems unlikely, therefore, that an upper age limit for recruitment will be allowed unless the employer can show a good reason related to the particular needs of its business. For example, an employer with a high proportion of older workers in a particular job might be able to argue that it was justifiable to discriminate in favour of younger applicants in order to secure a balance of ages. On the other hand, it is improbable that an employer would be able to justify imposing an upper age limit on grounds that its customers preferred seeing younger faces.

So far as compulsory retirement is concerned, if the Directive is to mean anything, it must mean that employers will not be able to impose their own arbitrary retirement age, unless there are circumstances peculiar to the business which provide an objective justification. It is true that the Directive includes a recital, which states: "This Directive shall be without prejudice to national provisions laying down retirement ages." However, there are no such "national" provisions in the UK.

Another form of permissible age discrimination relates to the rules of occupational pension schemes. Article 6(2) of the Directive, not surprisingly, allows Member States to provide that occupational social security schemes can continue to have age rules relating to admission or entitlement to retirement benefit.

This is a specific example of a general principle set out by Article 6. Member States may leave in place legislation, or enact new laws, that discriminate on grounds of age, provided they meet the test of objective justification laid down. Employers who are not emanations of the State for EU law purposes will be able to rely on such legislation. Challenges to whether the particular legislation is inconsistent with the Directive could be brought against the Government, or a public sector body.

Issues for implementation

There is no doubt that implementing age discrimination legislation will raise some difficult questions both for government and for employers. These include:

• Will job advertisements for "recent graduates" be permitted?
• Will employers be allowed to ask for an applicant's date of birth on a job application form?
• Will employers be able to reject applicants on grounds that they are "overqualified", or will that be regarded as a pretext for age?
• When will experience requirements be regarded as justified?
• Will employers operating salary scales linked to age or experience be allowed to reject applicants because it would cost too much to employ them?
• What rules will apply where a job is especially physically demanding?
• How are differences in costs in employing older workers, such as in respect of sick pay schemes, to be taken into account?
• What relationship will there be between age discrimination and disability discrimination?
• Is deterioration in performance to be judged against some objective norm or against an individual's own prior performance?
• Will older workers who are not performing well be protected from being treated less favourably than younger workers with equally poor performance?
• Will an employer be allowed to select older (or longer-serving) workers for redundancy first on grounds that that will effect greater cost savings?
• When will employers be able to "encourage" early retirement?

Age discrimination legislation must be implemented no later than 2 December 2006, though it is by no means clear that the Government will delay until the last possible moment before bringing this part of the Directive into force. Employers will want advice at an early stage on how to comply with the new legal requirements. This could be provided by a Code of Practice issued well in advance of whatever implementation date is chosen.

Disability discrimination

The parts of the Directive relating to disability discrimination are probably the most complex of the Directive's provisions. From the UK Government's standpoint, their main objective was to ensure that the Directive did not undermine the structure of the Disability Discrimination Act. This was threatened by the European Commission's original proposals, but in the event these were modified substantially. That having been said, changes in the current law will be necessary in order to comply with the Directive's requirements.

Meaning of disability

First of all, the Directive provides that there shall be no direct or indirect discrimination "whatsoever" on grounds of "disability", but there is no definition of "disability" or of "disabled person". Bearing in mind that this is a framework Directive, this does not mean that the detailed definition of disability in the DDA will have to be abandoned. It would seem to be for the Member State to defined who is disabled. The DDA defines this in terms of a substantial impairment affecting normal day-to-day activities. There are, of course, other ways in which disability could have been defined, but there is no reason to think that this aspect of the DDA definition fails to comply with the Directive.

What is perhaps more problematic is the DDA's requirement that the impairment must be long-term, in the sense of being likely to last for at least 12 months. The Directive, like most European legislation, admits of no exceptions, other than those expressly laid down. A person whose impairment is not sufficiently substantial is not "disabled". A person who is unable to show that their substantial impairment is likely to last for at least 12 months is still a "disabled" person, even if they do not qualify under the DDA. It may be that this element of the definition will have to be altered, although it is unlikely that disabilities that are merely temporary fall within the scope of the Directive.

The DDA, via the Meaning of Disability Regulations, also specifically excludes certain mental illnesses which are clinically well-recognised, and would otherwise fall within the statutory definition. These are: a tendency to set fires, a tendency to steal, a tendency to physical or sexual abuse of other persons, exhibitionism, and voyeurism. Continued exclusion of such conditions from the scope of the legislation is likely to fall within the general savings provision in Article 2(5), that the Directive is without prejudice to measures laid down by national law which, "in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others." This is a key provision, to which further reference will be made in this article.

Scope

There is nothing in the Directive to allow an exclusion from its scope of employees of small employers, and it would seem that the current exclusion in the DDA of employers with less than 15 employees will have to be abolished.

The employment provisions of the DDA currently completely exclude "service in any of the naval, military, or air forces of the Crown." The Directive does not require this to change. Article 3(4) stipulates that "Member States may provide that this Directive, in so far as it relates to discrimination on the grounds of disability and age shall not apply to the armed forces." Recital 19 specifies that if a Member State chooses not to apply the provisions of the Directive concerning disability and age to all or part of their armed forces, it must "define the scope of that derogation." The controversial issue is whether disabled people should be allowed to serve in non-combatant roles. This was recommended by the Disability Rights Task Force. However, the Chief of the Defence Staff, Sir Charles Guthrie, recently expressed the view that allowing disabled people to serve in such a capacity was "ill-conceived". A spokesman for the Prime Minister was reported as supporting this view, insisting that all military personnel have to be able to fight and that there is "no such thing as a non-combatant job" in the forces. This has been criticised by the chair of the Disability Rights Commission, Bert Massie, as an "outdated stereotype" and DRC Commissioner Colin Low added that "all we are against is the absolute bar on disabled people serving in the armed forces. We are fully mindful of the need for combat effectiveness."

Proving and defending discrimination

The changes required by the Directive will be more important in respect of proving and defending disability discrimination. The DDA currently does not prohibit indirect discrimination as such. However, the broad definition of discrimination adopted, encompassing treatment "related to" disability, taken together with the duty of reasonable adjustment, has been seen as providing protection in much the same circumstances.

The new Directive requires the UK to prohibit indirect discrimination on grounds of disability. So how will that fit into the current framework? Article 2(2)(b) stipulates that indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular disability at a particular disadvantage compared with other persons unless:

"(i)that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

(ii)as regards persons with a particular disability, the employer...is obliged, under national legislation, to take appropriate measures in line with the principle contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice."

Article 5 is the duty of "reasonable accommodation" for disabled persons. This is defined as meaning that "employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer." Following revisions to the original draft, this is now aligned with the test for reasonable adjustment under s.6 of the DDA.

The Directive would appear to allow the UK to choose either limb of Article 2(2)(b) as the statutory defence. It is anticipated that the Government will follow the reasonable accommodation route, so that it will be a defence to a claim of indirect disability discrimination that the employer complied with any duty of reasonable adjustment.

When the Directive is implemented, therefore, the category of direct discrimination will be confined to cases where the ground for less favourable treatment is disability as such, rather than where the reason is "related to" disability. This will largely cover cases of prejudice and overt discrimination. If proven, the Directive does not allow for such direct discrimination to be justified, unless the case falls within one of the permissible exceptions such as where the discrimination is necessary for the protection of health (Article 2(5)) or where there is a genuine occupational requirement (Article 4), or where there is an exclusion relating to the armed forces (Article 3(4)).

This is with the caveat that Recital 17 makes clear that it is not discrimination for the purpose of the Directive to treat a disabled person differently on grounds that they are "not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training." However, Recital 17 goes on to provide that the duty of reasonable accommodation trumps this principle. This means that a disabled person should not be turned down for a post on grounds that they are not competent, capable etc without taking account of any reasonable adjustment that would enable them to meet that standard and to perform the essential functions of the job. This accords with the existing structure of the DDA.

When the Directive is implemented, cases of indirect discrimination, where a provision, criterion or practice places a disabled person at a substantial disadvantage, will encompass cases where the treatment was related to disability, but was not by reason of disability per se, such as where an employee is dismissed for disability-related absence in accordance with an absence control policy. In such a case, the reasonable accommodation test under Article 2(2)(b)(ii) will apply. Whether or not the employer has indirectly discriminated unlawfully will depend on whether it complied with the reasonable accommodation duty by taking appropriate measures to eliminate disadvantages entailed by such provision, criterion or practice. The employer will have an obligation to take the appropriate measures, subject to proportionality in relation to costs.

There will be no further opportunity for an employer to justify failing to make a reasonable adjustment as currently allowed by s.5(4), a provision which will have to be repealed when the Directive is implemented.

Sexual orientation discrimination

The Directive requires legislation to prohibit discrimination in employment on grounds of sexual orientation by December 2003. Both direct and indirect discrimination must be prohibited. Indirect discrimination will be capable of objective justification in accordance with Article 2. Direct discrimination is not capable of justification, save if the circumstances fall within one of the specific exceptions allowed for by the Directive.

Scope

There is no definition given of "sexual orientation" and, unlike the other grounds prohibited by the Directive, there is nothing specific in the recitals to clarify what the Council had in mind.

Two related issues arise in this respect. The first is how broadly "orientation" is to be interpreted. "Orientation", strictly speaking, is a state of mind, a tendency. Is there a meaningful line to be drawn between homosexual orientation and homosexual behaviour? Behaviour is the visible and outward manifestation of an orientation, and the right created by the Directive would be devoid of meaning if different rules were to be applied as between heterosexual and homosexual conduct.

This may create some difficult issues for employers, however, in respect of the expression of sexuality. The old EAT case of the woman dismissed for insisting on wearing a "Lesbians Ignite" badge comes to mind (Boychuk v HJ Symons [1977] IRLR 395). Will that amount to discrimination on grounds of sexual orientation (on the assumption that a woman wearing a comparable heterosexual emblem would not be dismissed)? Or will the employer be able to argue that it has no objection to employing lesbians, but is merely objecting to the badge and the (alleged) effect that has on its business interests? To what extent will the UK legislation transposing the Directive take account of the right to freedom of expression, as embodied in the Human Rights Act 1998? Similar questions arise in respect of the effect of publicity given to an employee's homosexual behaviour.

This leads to the second issue, the extent to which the Directive goes beyond discrimination against lesbians and gay men. Does it protect heterosexuals and homosexuals with minority sexual preferences, such as those who engage in sado-masochistic practices, or transvestites? Article 2(5), with its caveat that the Directive does not oust national legislation in respect of "the prevention of criminal offences", provides a limitation that would ensure that people like paedophiles would not be able to claim discrimination on grounds of their sexual orientation. Where the line would be drawn for behaviour which is not criminal must remain to be seen.

Fringe benefits

When legislation prohibiting sexual orientation discrimination comes into force, the main areas in which it is likely to have an effect in the UK are on benefit packages and with regard to protection against harassment.

Fringe benefits which exclude same-sex couples or which discriminate in favour of married employees are certain to be challenged. Such distinctions are becoming less common in any event, in accord with the decline in the proportion of the population who are legally married. Many employers, if they did not change their policies when the Grant case was going through the courts, were geared up to do so until the European Court of Justice said that discrimination against homosexuals did not contravene EU equal pay law (EOR 78).

An exclusion of an employee from right to a benefit because their partner is of the same sex is directly discriminatory on grounds of sexual orientation and therefore would seem to become unlawful per se when the Directive is implemented. Exclusion of an employee, or the employee's partner, because they are not legally married is indirectly discriminatory against lesbians and gay men. The employer will have to establish an objective justification for such a policy. It is difficult to visualise how, in most circumstances, this could be shown.

Harassment

Readers of EOR and Discrimination Case Law Digest will know full well that sex discrimination law has proved to be inadequate protection for lesbians and gay men who have been harassed at work. This was most recently illustrated by the EAT decision in Pearce v Governing Body of Mayfield School (EOR 93). The essential problem has been that ever since the Court of Appeal's decision in Smith v Gardner Merchant (EOR 81), sex discrimination law has been interpreted as requiring a gay man who has been subjected to homophobic harassment to show that a lesbian would have been more favourably treated, rather than that their treatment was less favourable than that which would be accorded to a heterosexual man. The underlying reasoning of this line of cases is that the harassment is on grounds of sexual orientation and not of sex. So be it. Under the Directive, the comparison will now be straightforward. A homosexual man will compare his treatment to that of a heterosexual man.

The Framework Directive does contain express provisions concerning harassment on all the grounds covered by the Directive. These are set out in Article 2(3), which provides that harassment shall be deemed to be a form of discrimination within the meaning of the Directive "when unwanted conduct related to any of the grounds referred to in Article 1 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." This formulation is unchanged from the draft Directive. As we pointed out in EOR 90, the conjunctive nature of this wording would require a complainant to show not only that the harassment violated their dignity, but also that it affected their environment in the ways described. This is a more stringent test than applied under UK sex and race discrimination law, where only a showing of detrimental treatment is required. When the Directive is transposed, those complaining of harassment on grounds of sexual orientation (or age or religion) are likely to be better off by bringing a complaint that they were subjected to a detriment than by using any special provisions relating to harassment.

Discrimination on grounds of religion or belief

The Directive will require the UK to prohibit discrimination on grounds of "religion or belief". This has been unlawful in Northern Ireland since 1976, but is not directly covered in Great Britain. Case law under the Race Relations Act has protected Jews and Sikhs as ethnic groups, but Muslims have only been able to succeed via an indirect discrimination route linked to their nationality or national origin. This will change by the end of 2003. Both direct and indirect discrimination on grounds of religion or belief will be prohibited.

Scope

As with the other forms of discrimination prohibited, neither "religion" nor "belief" is defined. It is clear, however, that discrimination on grounds of "religion" includes discrimination on grounds of not belonging to a particular religious group, as well as discrimination on grounds of practising a particular religion.

A key issue so far as the scope of "religion" is concerned will be the status of fringe or cult religions, and more particularly their tenets and practices. Whereas the courts were able to limit the coverage of "ethnic" group under the Race Relations Act by imposing a test of a shared history, no such qualification immediately suggests itself for the meaning of "religion". Nor is there a clear line between "religion" and "philosophy". Criteria are likely to be left to the courts to devise when people complain about being discriminated against on grounds of their religion.

Article 2(5) is especially relevant in providing a safeguard against abuse of the religious discrimination provisions in that it makes clear that the Directive is without prejudice to measures which are necessary "for the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others." Someone who is not recruited because a pre-employment drug test shows traces of cannabis is unlikely to be able to win a complaint on the basis that they smoke prohibited substances as part of an act of religious worship.

It is possible that "belief" could not be interpreted widely, so as to encompass political or social beliefs. However, there is nothing in the Directive and, more particularly, nothing in the recitals, to suggest that this is what is intended. "Belief", it would seem, is meant to be limited to something akin to religious belief. This might cover a particular form of practising a religion, such as someone who is discriminated against for being a "devout" Roman Catholic, or a general belief in God, or perhaps even someone who is discriminated against because they are an atheist or a humanist.

Likely impact

The major impact in the UK of this part of the Directive will be in providing increased protection against discrimination for 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. Sabbath observance is likely to be an issue for Muslims, Orthodox Jews, Seventh Day Adventists and others who find themselves unable to work scheduled hours for religious reasons.

A key political issue for those negotiating the Directive was that of protecting the rights of churches and other religious organisations with a particular religious ethos. Article 4(2) allows Member States to legislate to provide that "in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground."

Article 4(2) then goes on to stipulate that: "Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos."

The scope of this derogation is likely to extend further than just churches or church schools, to other organisations which are "faith-based". The first limb will allow Member States to make religion a genuine occupational qualification for particular posts, where this is justified by the nature of the activities or the context in which they are carried out. This part of Article 4(2) deals with the identity of a person's religion or belief. It would allow a Church of England school, for example, to require a religious education teacher to be an observant member of the C of E. It is unlikely to allow the same school to impose a requirement relating to religion of a school caretaker.

The second limb of the derogation in Article 4(2) deals with behaviour. It refers to individuals acting "with loyalty to the organisation's ethos". This might be relevant where a person's behaviour was so at variance with the values and beliefs of the organisation that they could be held to be acting in a way that was incompatible with the organisation's ethos. The Government has emphasised that this was intended to be compatible with s.60 of the Schools Standards and Framework Act, which allows a teacher to be dismissed if their sexual conduct is inconsistent with a school's ethos. It would seem, however, that any restrictions on behaviour would have to be both proportional and not in contravention of the Human Rights Act and its provisions relating to freedom of expression.

The wording of the second limb of the derogation suggests that the rights of religious organisations to preserve their ethos cannot be used as a justification for denying other rights established by the Directive (or national law). Thus, the fact that a fundamentalist religious group regards homosexuality as sinful will not allow it to discriminate in employment against someone because of their sexual orientation.

Northern Ireland

Two exceptions from the Directive, set out in Article 18, deal specifically with the position in Northern Ireland. The first of these allows national legislation to override the protection against discrimination on grounds of religion in respect of recruitment to the Northern Ireland police service. This will permit positive discrimination in favour of Roman Catholics, as provided for by the Police (Northern Ireland) Act.

The second exception from the right not to be discriminated against on grounds of religion relates to recruitment of teachers in Northern Ireland schools, which are largely organised on a sectarian basis. This exception is said to be "in order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there."

COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

The Council of the European Union,

Having regard to the Treaty establishing the European Community, and in particular Article 13 thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Parliament,

Having regard to the Opinion of the Economic and Social Committee,

Having regard to the Opinion of the Committee of the Regions,

Whereas:

(1) In accordance with Article 6 of the Treaty on European Union, the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to all Member States and it respects fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

(2) The principle of equal treatment between women and men is well established by an important body of Community law, in particular in Council Directive 76/ 207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

(3) In implementing the principle of equal treatment, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.

(4) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation.

(5) It is important to respect such fundamental rights and freedoms. This Directive does not prejudice freedom of association, including the right to establish unions with others and to join unions to defend one's interests.

(6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appropriate action for the social and economic integration of elderly and disabled people.

(7) The EC Treaty includes among its objectives the promotion of coordination between employment policies of the Member States. To this end, a new employment chapter was incorporated in the EC Treaty as a means of developing a coordinated European strategy for employment to promote a skilled, trained and adaptable workforce.

(8) The Employment Guidelines for 2000 agreed by the European Council at Helsinki on 10 and 11 December 1999 stress the need to foster a labour market favourable to social integration by formulating a coherent set of policies aimed at combating discrimination against groups such as persons with disability. They also emphasise the need to pay particular attention to supporting older workers, in order to increase their participation in the labour force.

(9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.

(10) On 29 June 2000 the Council adopted Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. That Directive already provides protection against such discrimination in the field of employment and occupation.

(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.

(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and occupation.

(13) This Directive does not apply to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article 141 of the EC Treaty, nor to any kind of payment by the State aimed at providing access to employment or maintaining employment.

(14) This Directive shall be without prejudice to national provisions laying down retirement ages.

(15) The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide, in particular, for indirect discrimination to be established by any means including on the basis of statistical evidence.

(16) The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.

(17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.

(18) This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.

(19) Moreover, in order that the Member States may continue to safeguard the combat effectiveness of their armed forces, they may choose not to apply the provisions of this Directive concerning disability and age to all or part of their armed forces. The Member States which make that choice must define the scope of that derogation.

(20) Appropriate measures should be provided, i. e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.

(21) To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.

(22) This Directive is without prejudice to national laws on marital status and the benefits dependent thereon.

(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.

(24) The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.

(25) The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.

(26) The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular religion or belief, disability, age or sexual orientation, and such measures may permit organisations of persons of a particular religion or belief, disability, age or sexual orientation where their main object is the promotion of the special needs of those persons.

(27) In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community, the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons.

(28) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.

(29) Persons who have been subject to discrimination based on religion or belief, disability, age or sexual orientation should have adequate means of legal protection. To provide a more effective level of protection, associations or legal entities should also be empowered to engage in proceedings, as the Member States so determine, either on behalf or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts.

(30) The effective implementation of the principle of equality requires adequate judicial protection against victimisation.

(31) The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought. However, it is not for the respondent to prove that the plaintiff adheres to a particular religion or belief, has a particular disability, is of a particular age or has a particular sexual orientation.

(32) Member States need not apply the rules on the burden of proof to proceedings in which it is for the court or other competent body to investigate the facts of the case. The procedures thus referred to are those in which the plaintiff is not required to prove the facts, which it is for the court or competent body to investigate.

(33) Member States should promote dialogue between the social partners and, within the framework of national practice, with non-governmental organisations to address different forms of discrimination at the workplace and to combat them.

(34) The need to promote peace and reconciliation between the major communities in Northern Ireland necessitates the incorporation of particular provisions into this Directive.

(35) Member States should provide for effective, proportionate and dissuasive sanctions in case of breaches of the obligations under this Directive.

(36) Member States may entrust the social partners, at their joint request, with the implementation of this Directive, as regards the provisions concerning collective agreements, provided they take any necessary steps to ensure that they are at all times able to guarantee the results required by this Directive.

(37) In accordance with the principle of subsidiarity set out in Article 5 of the EC Treaty, the objective of this Directive, namely the creation within the Community of a level playing-field as regards equality in employment and occupation, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at Community level. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,

has adopted this Directive:

Chapter I: General provisions

Article 1

Purpose

The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.

Article 2

Concept of discrimination

1. For the purposes of this Directive, the 'principle of equal treatment 'shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2. For the purposes of paragraph 1:

(a)direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

(b)indirect discrimination shall be taken to occur 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 compared with other persons unless:

(i)that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or

(ii)as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.

3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.

4. An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1.

5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.

Article 3

Scope

1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

(a)conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

(b)access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;

(c)employment and working conditions, including dismissals and pay;

(d)membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.

2. This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of thirdcountry nationals and stateless persons in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

3. This Directive does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes.

4. Member States may provide that this Directive, in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces.

Article 4

Occupational requirements

1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.

Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos.

Article 5

Reasonable accommodation for disabled persons

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.

Article 6

Justification of differences of treatment on grounds of age

1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

(a)the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b)the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

(c)the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.

Article 7

Positive action

1. With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.

2. With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.

Article 8

Minimum requirements

1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.

Chapter II: Remedies and enforcement

Article 9

Defence of rights

1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.

2. Member States shall ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

3. Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment.

Article 10

Burden of proof

1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

3. Paragraph 1 shall not apply to criminal procedures.

4. Paragraphs 1, 2 and 3 shall also apply to any legal proceedings commenced in accordance with Article 9(2) .

5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

Article 11

Victimisation

Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.

Article 12

Dissemination of information

Member States shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force in this field, are brought to the attention of the persons concerned by all appropriate means, for example at the workplace, throughout their territory.

Article 13

Social dialogue

1. Member States shall, in accordance with their national traditions and practice, take adequate measures to promote dialogue between the social partners with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct and through research or exchange of experiences and good practices.

2. Where consistent with their national traditions and practice, Member States shall encourage the social partners, without prejudice to their autonomy, to conclude at the appropriate level agreements laying down anti-discrimination rules in the fields referred to in Article 3 which fall within the scope of collective bargaining. These agreements shall respect the minimum requirements laid down by this Directive and by the relevant national implementing measures.

Article 14

Dialogue with non-governmental organisations

Member States shall encourage dialogue with appropriate non-governmental organisations which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on any of the grounds referred to in Article 1 with a view to promoting the principle of equal treatment.

Chapter III: Particular provisions

Article 15

Northern Ireland

1. In order to tackle the underrepresentation of one of the major religious communities in the police service of Northern Ireland, differences in treatment regarding recruitment into that service, including its support staff, shall not constitute discrimination insofar as those differences in treatment are expressly authorised by national legislation.

2. In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there, the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland in so far as this is expressly authorised by national legislation.

Chapter IV: Final provisions

Article 16

Compliance

Member States shall take the necessary measures to ensure that:

(a)any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;

(b)any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers' and employers' organisations are, or may be, declared null and void or are amended.

Article 17

Sanctions

Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 2 December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 18

Implementation

Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 2 December 2003 at the latest or may entrust the social partners, at their joint request, with the implementation of this Directive as regards provisions concerning collective agreements. In such cases, Member States shall ensure that, no later than 2 December 2003, the social partners introduce the necessary measures by agreement, the Member States concerned being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.

In order to take account of particular conditions, Member States may, if necessary, have an additional period of 3 years from 2 December 2003, that is to say a total of 6 years, to implement the provisions of this Directive on age and disability discrimination. In that event they shall inform the Commission forthwith. Any Member State which chooses to use this additional period shall report annually to the Commission on the steps it is taking to tackle age and disability discrimination and on the progress it is making towards implementation. The Commission shall report annually to the Council.

When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Article 19

Report

1. Member States shall communicate to the Commission, by 2 December 2005 at the latest and every five years thereafter, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive.

2. The Commission's report shall take into account, as appropriate, the viewpoints of the social partners and relevant non-governmental organisations. In accordance with the principle of gender mainstreaming, this report shall, inter alia, provide an assessment of the impact of the measures taken on women and men. In the light of the information received, this report shall include, if necessary, proposals to revise and update this Directive.

Article 20

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 21

Addressees

This Directive is addressed to the Member States.