Council reaches common position on burden of proof in sex discrimination cases

Labour and Social Affairs Ministers from the Member States, meeting on 27 June 1997, discussed Directives relating to sex discrimination and health and safety, and debated employee information and consultation measures.

The following issues were on the agenda of the Labour and Social Affairs Council of Ministers meeting held in Luxembourg on 27 June 1997:

  • the draft Directive on the burden of proof in cases of discrimination based on sex;
  • the draft Directive on the protection of the health and safety of workers from the risk related to chemical agents at work;
  • the joint interim report on employment;
  • follow-up to the French "memorandum on a European social model";
  • the Commission Communication on modernising and improving social protection in the European Union;
  • the report of the working party of experts on "European systems of worker involvement";
  • industrial restructuring and worker information and consultation;
  • the future of the social dialogue; and
  • meeting with Asian countries at the ILO.

The Council reached unanimous political agreement on a common position regarding the proposal for a Directive on the burden of proof in cases of discrimination based on sex. This common position will be formally adopted at a forthcoming Council session. It will then be transmitted to the European Parliament for a second reading under the cooperation procedure. The effect of the Directive would be to consolidate the case law of the European Court of Justice by shifting the burden of proof in cases of discrimination based on sex. In effect, this means that responsibility for showing that there has been a difference in treatment based on sex would move from the plaintiff (the worker) to the defendant (the employer), which would then need to justify the reasons for the difference in treatment.

The common position covers both direct and indirect discrimination. The latter refers to cases where a criterion or apparently neutral practice disadvantages a substantially higher proportion of members of one sex, unless this is appropriate and necessary, and can be justified by objective reasons unrelated to sex. The Directive would apply to situations envisaged by Article 119 of the Treaty and the Directives on equal pay and access to employment plus, insofar as discrimination based on sex is concerned, the Directives on health and safety of pregnant workers and on parental leave.

The Council also reached political agreement on a proposal for a Directive on the protection of the health and safety of workers from the risks related to chemical agents at work. This common position will also be formally adopted at a forthcoming Council session and will then be transmitted to the European Parliament for a second reading. The aim of the proposal is to establish minimum standards for the protection of workers from the effects of exposure to the variety of chemical agents which can be found in workplaces. The proposal sets, at Community level, exposure limits in the form of indicative and binding occupational exposure limit values, as well as of binding biological limit values. The draft common position lays down mechanisms for the establishment of such limit values.

Ministers considered a joint interim report on employment prepared by the Economic Policy Committee, the Employment and Labour Market Committee (EU9702105N) and the Commission, and took note of a document which assesses the progress made in the areas covered by the French "memorandum on a European social model" (submitted in March 1996).

The Council's debate on the Commission Communication on "Modernising and improving social protection in the European Union" (EU9705124F)focused on the issue of social protection as a productive factor, on the similarity of challenges for the Member States and the possibility for developing a European response to these challenges. However, this debate is still in its early stages and will be pursued within the remit given by the Amsterdam European Council (EU9706133N).

On worker involvement in the European Company (the "Davignon report" - EU9705128N), the Council concluded that the approach taken by the working party of experts constitutes a constructive contribution for reviving discussion of worker involvement in the European Company. The course of action suggested by the working group, which involves the promotion of free negotiation between the social partners accompanied by a reference framework for worker involvement in the European Company, is seen to be one of the possible approaches towards arriving at a solution to this problem.

Ad Melkert, the Dutch Minister for Social Affairs and Employment, informed the Council of the progress of the discussions between the social partners regarding a common orientation with respect to information and consultation of employees in the case of industrial restructuring (EU9706132F) Commissioner Padraig Flynn provided information about the first stage of consultations between the Commission and the social partners on worker information and consultation at the national level (EU9706132F) He also reported back from what he perceived to be a very successful high-level social dialogue meeting on the future of the social dialogue (EU9702102F) held on 6 June. Mr Flynn underlined the Commission's intention to present a Communication on this issue before the end of the year.

The Council adopted without discussion a Directive on the protection of workers from the risks relating to carcinogens at work and a Regulation on social security schemes for migrant workers within the Community.

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