Revised Equal Treatment Directive

The provisional text of the revised EU Directive on equal treatment for men and women sets out new definitions of direct and indirect sex discrimination, and a freestanding definition of sexual harassment and sex-based harassment. Member states will have to implement the new Directive by 2005. In the UK, that will mean amending sex discrimination legislation.

The text was approved by the Conciliation Committee of the Council of Ministers and European Parliament. It is now with the lawyer-linguists to ensure consistency between the various Community languages before its formal adoption and publication in the Official Journal later this year. When this is done, EOR will reproduce the new Directive in full. Language quoted in this article, therefore, should be checked against the final version.

Harassment

The Directive sets out for the first time a binding Community-wide definition of sexual harassment. Like the 1991 Code of Practice on measures to combat sexual harassment at work on which it is largely based (EOR 41), the Directive encompasses both sexual harassment and sex-based harassment. It does so by including two definitions:

"Harassment" is defined as "where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating, or offensive environment."

"Sexual harassment" is defined as "where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating, or offensive environment."

The Directive goes on to stipulate that: "Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on grounds of sex and therefore prohibited."

These definitions, or definitions to a similar effect, will have to be incorporated in the Sex Discrimination Act 1975, probably by mid-2005 at the latest.

Sex-based harassment

As noted, the Directive's definition is based on the widely-followed Code of Practice, which defines "sexual harassment" as "unwanted conduct of a sexual nature or other conduct based on sex". In their 1993 guide to implementing the European Commission Code of Practice ("How to combat sexual harassment at work", EOR 52), Michael Rubenstein and Ineke De Vries highlighted the breadth of this definition: "The European Commission Code recognises that sexual harassment includes, but is not restricted to, sexual conduct. Sexual harassment often has nothing to do with an attempt to initiate sexual relations. It can be an exhibition of power or even hostility. The Code acknowledges this reality by including in the definition 'other conduct based on sex' affecting the dignity of women and men at work."

This concept is reflected in the separate definition in the Directive of "harassment" as sex-based, but not sexual, conduct. This will cover intimidatory conduct, bullying, physical or verbal abuse directed at a woman for a reason "related to" the fact that she is a woman. This is potentially very broad indeed. Its scope covers any conduct which is (1) "unwanted" and (2) "related to the sex of a person". This can potentially encompass sexist language, sexist jokes and banter directed at individuals. But it also extends to treatment devoid of any sexist conduct, so long as it is unwanted, sex-related and has the requisite purpose and effect. The supervisor who picks on a woman because she is a woman will be potentially liable under this definition, regardless of the form that the bullying takes. The Directive, therefore, focuses on substance rather than form.

Note also that by using the formulation "related to" sex, rather than "on grounds of" sex, the Directive will allow unwanted conduct to be challenged that is not directed at a woman per se, so long as it is linked to the fact that she is a woman. This is a low threshold, and suggests application of a "but for" test of causation: ie would she have been treated that way had she not been a woman? It would appear to cover harassment of a woman because she is pregnant or because of any other sex-related physical characteristics, or because the woman does not conform to the harasser's stereotype as to how a woman should behave, such as by being too assertive.

In addition, by deeming such harassment to be sex discrimination, the Directive removes the potential for using how a person of the opposite sex would be treated as a defence to a case of proven harassment. The fact that a supervisor may have used parallel sexist language to a man will not turn what would otherwise be unlawful conduct into lawful conduct, although how a person of the opposite sex was treated may still be relevant as a matter of evidence as to whether the conduct was "related to" the sex of the person subjected to it.

It can be seen, therefore, that many forms of unwanted sex-based conduct are likely to fall within the first limb of the definition of unlawful harassment when the Directive is implemented. The issue then will be whether the conduct "occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating, or offensive environment."

This part of the definition in the revised Equal Treatment Directive is taken directly from the definition in the Race Discrimination Directive and the Framework Employment Directive . In contrast with the definition in the Code of Practice on sexual harassment and the definition in the Directive itself on sexual harassment, the definition of (sex-based) harassment requires a showing both that the conduct concerned had the "purpose or effect of violating the dignity of a person" and that it also had the purpose or effect of "creating an intimidating, hostile, degrading, humiliating or offensive environment". As a matter of language, conduct which has the effect of violating a person's dignity will not fall foul of these provisions unless the requisite link to the person's working environment can be shown. Conversely, conduct which damages, or has the aim of damaging, the working environment will not be unlawful unless it also has the purpose or effect of violating the employee's dignity. Both criteria have to be satisfied. It will be interesting to see how the UK government chooses to implement this part of the definition. The consultation document on the Race and Framework Employment Directives suggests that the government believes the conjunctive nature of the definition means that the protection offered by the Directives would be less than that established under UK case law.

Sexual harassment

The definition of sexual harassment encompasses "unwanted verbal, non-verbal or physical conduct of a sexual nature". This is taken straight from the Commission Code of Practice.

The Commission guide to implementing the Code explains that "physical conduct of a sexual nature" is commonly regarded as meaning "unwanted physical contact ranging from unnecessary touching, patting or pinching or brushing against another employee's body to assault and coercing sexual intercourse. Much of this conduct, if it took place in the street between strangers, would amount to a criminal offence."

"Verbal conduct of a sexual nature" may include "unwelcome sexual advances, propositions or pressure for sexual activity; continued suggestions for social activity outside the workplace after it has been made clear that such suggestions are unwelcome; offensive flirtations; suggestive remarks, innuendoes or lewd comments. Such behaviour defines women's role as sexual objects rather than as work colleagues."

"Non-verbal conduct of a sexual nature" refers to the "display of pornographic or sexually-suggestive pictures, objects or written materials; leering, whistling, or making sexually suggestive gestures. These behaviours may make women feel uncomfortable or threatened and undermine the position of a woman who seeks to deal with her fellow employees with professional dignity."

In order to establish sexual harassment within the meaning of this definition, the claimant will have to show three ingredients: that she was subjected to conduct of the specified kind, that the conduct was "unwanted" and that it had the specified effect on her dignity.

In the latter context, there is an important difference between the definition of "sexual harassment" and the definition of "harassment". The drafters, having been stuck with the template of the Race and Framework Directives when drafting the comparable provisions for sex-based harassment, were able to detach the definition of sexual harassment. In so doing, they were able to devise a different second limb of the definition. This provides that unwanted sexual conduct will fall within the definition if it has "the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating, or offensive environment."

In this definition, therefore, there is no requirement to show the ingredient both with regard to the individual and with regard to the working environment. Instead, sexual conduct which creates an offensive working environment is treated as an example of conduct which has the purpose or effect of violating a person's dignity. This will be widely regarded as a more realistic and sensible approach.

In order to fall within the definition of sexual harassment, the conduct in question will have to be shown to be "unwanted". An important contribution made by the European Commission Code of Practice has been to highlight that "the essential characteristic of sexual harassment is that it is unwanted by the recipient," and to state in unequivocal terms that "it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive." In its consultative document on implementing the Race and Framework Directives, the government trailed the idea of adding a more objective "reasonable person" test to this concept. It is certainly arguable that the language of the new Equal Treatment Directive incorporates an objective standard, at least in so far as the conduct concerned was not deliberately (had the "purpose" of) aimed at violating an employee's dignity. It is for the employee to decide whether conduct is unwanted, but it is for the tribunal to determine whether the conduct had the effect of making the working environment intimidating, hostile, degrading, humiliating, or offensive.

As with sex-based harassment, proven sexual harassment will be deemed to be unlawful sex discrimination. This will be especially important in respect of conduct to which both men and women are subjected, such as displays of pin-ups or pornography, or use of sexual language. At the moment, employers sometimes have been able to defend a sexual harassment claim by arguing that there can be no sex discrimination where men and women are treated alike. When the Directive becomes law, by 2005 if not earlier, employers who allow displays of pornographic material, for example, will run the risk of sexual harassment complaints from both women and men.

Quid pro quo harassment

The 1991 European Commission Recommendation on the protection of the dignity of women and men at work (EOR 41) identified sexual harassment both as that which created "an intimidating, hostile or humiliating work environment for the recipient", and as a situation where "a person's rejection of, or submission to, such conduct . . . is used explicitly or implicitly as a basis for a decision which affects that person's access to vocational training, access to employment, continued employment, promotion, salary or any other employment decisions."

This is the concept of quid pro quo harassment, and the section of the revised Directive dealing with harassment echoes the Recommendation by specifically stipulating that "a person's rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person." In the UK, it has long been clear law that quid pro quo harassment in this sense contravenes the Sex Discrimination Act.

Definitions of discrimination

The revised Equal Treatment Directive sets out new definitions of direct and indirect sex discrimination in line with the definition in the Race Discrimination Directive and that in the Framework Directive.

Direct discrimination is defined as "where one person is treated less favourably on grounds of sex than another is, has been, or would be treated in a comparable situation."

Indirect discrimination is defined as "where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary."

The wording used by the Directive means that the definition of indirect sex discrimination which came into force on 12 October 2001 in accordance with the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations will once again change. However, as a result, there will be consistency in the definition of indirect discrimination as between sex, race and the new strands covered by the Framework Directive.

Mainstreaming

The objectives of the Directive have been altered so as to promote the concept of mainstreaming of equality into decision-making. An addition to article 1 provides: "Member states shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to in paragraph 1."

However, this has become much more exhortory than the draft originally proposed by the European Commission (EOR 94), which would have stipulated that "Member states shall introduce such measures as are necessary to enable them to actively and visibly promote the objective of equality between women and men by its incorporation, in particular, into all laws, regulations, administrative provisions, policies and activities in the areas referred to in paragraph 1."

Genuine occupational qualifications

Article 2(2) of the 1976 Directive is to be replaced by the following: "Member states may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is based on a characteristic related to sex 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."

This change takes account of the decisions of the ECJ in this area, such as Johnston v Chief Constable of the Royal Ulster Constabulary (EOR 8) and Sirdar v The Army Board and Secretary of State for Defence (EOR 89). According to the Commission, the main conclusion that can be drawn from the case law is that the "degree of discretion" enjoyed by member states to exclude some occupational activities from the scope of the Directive is subject to "strict scrutiny".

From a UK perspective, the Directive will require new wording for the genuine occupational qualification exceptions, but it is unlikely to have much substantive impact.

Pregnancy and maternity leave

The revised Equal Treatment Directive makes explicit the right of a woman who has given birth to return to her job, or to an equivalent post, on no less favourable terms and conditions than those which applied prior to her taking maternity leave. It adds the following to article 2(3): "A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence."

This provision essentially mirrors the maternity leave provisions already found in the Maternity and Parental Leave Regulations 1999 . The difference for UK employees and employers lies in the remedy. Under current law, women who are not permitted to return to work after maternity leave are treated as unfairly dismissed under the Employment Rights Act. Their compensation is subject to the statutory upper limit and, in most cases, they will not receive damages for injury to feelings. When the new Equal Treatment Directive is implemented, women, in such circumstances, will be able to claim both sex discrimination and unfair dismissal and to take advantage of any mismatch in remedies.

Similarly, the new Directive deems 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 this Directive." This means that a contravention of those parts of the Employment Rights Act or of the Maternity and Parental Leave Regulations which implement the Pregnant Workers Directive 92/85 will be treated as acts of sex discrimination as well.

Coverage includes pay discrimination

New article 3 sets out the Directive's coverage. As well as applying to selection criteria, recruitment, promotion and training, article 3(1)(c) stipulates that the Equal Treatment Directive applies to "employment and working conditions, including dismissals, as well as pay as provided for in Directive 75/117/EEC."

Directive 75/117, the Equal Pay Directive, requires "the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration" for the same work or for work of equal value.

Recital 15 to the Directive states that: "The principle of equal pay for men and women is already firmly established by Article 141 of the Treaty and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women and is consistently upheld by the case law of the Court of Justice; the principle constitutes an essential and indispensable part of the acquis communautaire concerning sex discrimination."

Until now, the Equal Treatment Directive has contained no reference to "pay" and the European Court of Justice has consistently drawn a line between "pay" issues falling under Article 141 and the Equal Pay Directive, and "working conditions" falling under the Equal Treatment Directive. Thus, in the Gillespie decision [1996] IRLR 212, the Court said in terms: "the benefit paid during maternity leave constitutes pay and therefore falls within the scope of Article [141] of the Treaty and Directive 75/117. It cannot therefore be covered by Directive 76/207 as well. That Directive . . . does not apply to pay within the meaning of the above-mentioned provisions." Conversely, in the Lommers decision [2002] IRLR 430, the Court said: "the fact that the fixing of certain working conditions may have pecuniary consequences is not sufficient to bring such conditions within the scope of Article [141] . . . which is a provision based on the close connection existing between the nature of the work done and the amount of pay."

The new wording of the Equal Treatment Directive brings it into line with that of the Framework Directive, which appears to be the main reason why "pay" was included. It will also codify the case law which holds that the Equal Treatment Directive covers issues relating to working conditions which fall outside the Equal Pay Directive.

What remains to be seen, however, is whether applicants will be able to use the new wording of the Equal Treatment Directive (and the Sex Discrimination Act 1975 when it is amended to implement the Directive) in order to tackle pay discrimination issues that fall outside the scope of Article 141 and the Equal Pay Directive. For example, an equal pay claim requires an actual comparator, whereas a claim of sex discrimination can be brought in respect of a hypothetical comparator. Will it be possible for applicants to use the Equal Treatment Directive to bring a pay discrimination claim naming a hypothetical comparator? Similarly, equal pay legislation only provides a remedy for applicants discriminated against on grounds of sex in terms of pay who can establish that they are employed on like work or work of equal value to that of a comparator of the opposite sex. There is no remedy currently under equal pay law for those whose pay is discriminatorily under-valued in comparison with a person of the opposite sex - for example, a group of women whose work has been evaluated as being worth 75% of that a of group of men, but who are paid only 50% of the rate for the men's job.

Remedies

New wording takes into account the right to judicial protection after the employment relationship has ended.

The decision of the European Court of Justice in Coote v Granada Hospitality (EOR 82) appeared to establish this principle, but Coote has been restricted by UK courts to claims of victimisation. New article 6(1) provides: "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."

Informing, consulting and negotiating

Several new articles require member states to "encourage" employers to provide information on equality issues and to consult and/or negotiate on issues covered by the Directive.

Article 8b(2) provides:

"Where consistent with national traditions and practice, member states shall encourage the social partners, without prejudice to their autonomy, to promote equality between women and men and to conclude, at the appropriate level, agreements laying down anti-discrimination rules in the fields referred to in article 1 which fall within the scope of collective bargaining. These agreements shall respect the minimum requirements laid down by this Directive and the relevant national implementing measures.

(2a) Member states shall, in accordance with national law, collective agreements or practice, encourage employers to promote equal treatment for men and women in the workplace in a planned and systematic way.

(2b) To this end, employers should be encouraged to provide at appropriate regular intervals employees and/or their representatives with appropriate information on equal treatment for men and women in the undertaking.

Such information may include statistics on proportions of men and women at different levels of the organisation and possible measures to improve the situation in cooperation with employees' representatives."

The reference in (2a) to employers promoting equal treatment "in a planned and systematic way" represents the concept of "equality plans". However, the final provisions water down wording proposed by the European Parliament which would have required member states to create a legal duty on employers to promote equal treatment in this way.