New framework equal treatment Directive examined
The EU Council of Ministers formally adopted the Directive establishing a general framework for equal treatment in employment and occupation - covering age, disability, sexual orientation and religion/belief - on 27 November 2000. The Directive subsequently came into force on 2 December 2000 and Member States have three years to transpose its provisions into national legislation, extended to six years in the case of discrimination on grounds of age and disability. The Directive significantly extends the EU-level framework relating to protection against discrimination.
The proposal for a framework Directive aimed at combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation were first issued by the European Commission on 25 November 1999 (EU9912218F), as part of a package of measures comprising two draft Directives and a proposal for an anti-discrimination action programme.
It was expected that adoption of the second draft Directive, which was more controversial due to its wider scope, would be a lengthy process. However, the Commission revised the text, leaving out the race provisions, which had been dealt with by the first Directive, and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation was formally adopted on 27 November 2000, following political agreement reached at the 16–17 October 2000 Employment and Social Policy Council of Ministers (EU0010274F). The accompanying Council Decision (2000/750/EC) establishing a Community action programme to combat discrimination (2001 to 2006) was also formally adopted on 27 November.
Content of the Directive
The Directive attempts to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of:
- religion or belief;
- age; and
- sexual orientation.
The principle of equal treatment covers both direct and indirect discrimination. Direct discrimination is defined as occurring where "one person is treated less favourably than another is, has been or would be treated in a comparable situation".
Indirect discrimination is defined as occurring where "an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage" unless this is objectively justified or – in the case of disability – there is a national obligation to take appropriate measures in order to eliminate disadvantages.
Harassment is included as a form of discrimination under the scope of the Directive, as "when unwanted conduct ... takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment". The concept of harassment may be more narrowly defined by Member States.
The Directive applies to both the public and the private sector and covers the following areas:
- access to employment, to self-employment or to occupation. This includes selection criteria and recruitment conditions in all branches of activity and at all levels, including promotion;
- access to all types and levels of vocational guidance, training, retraining and work experience;
- employment and working conditions, including dismissals and pay; and
- membership of and involvement in a workers' or employment organisation or any professional organisation. It also covers any benefits provided for by these organisations.
However, the Directive does not cover differences of treatment based on nationality and is without prejudice to provisions relating to the entry into, and residence in, Member States of third-country nationals and stateless persons.
It also does not apply to payments made by state social security or social protection schemes. Further, Member States may provide that the Directive's provisions relating to age and disability do not apply to the armed forces.
Differences of treatment
Member States may allow a difference of treatment if by reason of the nature of the particular occupational activities concerned or the context, this constitutes a "genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate."
The Directive states further that Member States may provide for legislation which allows for a difference of treatment based on a person's religion or belief, if this is related to occupational activities within churches and other organisations whose ethos is based on religion or belief and that a person's religion or belief constitute a "genuine, legitimate and justified occupational requirement". It also allows churches and other organisations whose ethos is based on religion or belief to require their workers to "act in good faith and with loyalty to the organisation's ethos".
The Directive sets out the cases in which differences of treatment on grounds of age may be justified. It states first that differences of treatment on grounds of age will not be discriminatory if these are "objectively and reasonably justified" by a legitimate aim within the context of national law. It then gives a non-exhaustive list of circumstances in which differences of treatment may be justified:
- the setting of conditions regarding access to employment and training, employment and occupation, including dismissal and remuneration conditions, in the case of young people, older workers or persons with caring responsibilities, "in order to promote their vocational integration or ensure their protection", thus allowing a form of positive discrimination for these types of worker;
- fixing a minimum age, length of professional experience or seniority for access to employment or certain advantages linked to employment; and
- fixing a maximum age for recruitment which is based on the training requirements of the particular post or the need for a "reasonable" period of employment before retirement.
In addition, fixing age limits regarding admission to occupational social security schemes or age limits on entitlement to retirement or invalidity benefits, will not be discriminatory. Further, Member States may also provide that the use of age criteria in actuarial calculations does not constitute age discrimination, provided that this does not result in sex discrimination.
The Directive states that employers should take "appropriate measures" to ensure that disabled people can benefit from the provisions set out in this Directive, unless this imposes a "disproportionate burden" on employers.
Member States may maintain or adopt any specific measures aimed at preventing or compensating for disadvantages linked to discrimination on the grounds covered by the Directive. However, with regard to people with disabilities, Member States should have the right to maintain or adopt provisions relating to health and safety at work and provisions safeguarding or promoting the integration of disabled people into the working environment.
Availability of procedures for applying the Directive
Member States must ensure that judicial and/or administrative procedures are available to all persons who feel that there has been a failure in applying the principle of equal treatment to them, even after the end of the relationship in which discrimination is alleged to have occurred. Further, Member States should ensure that associations, organisations or other legal entities which have an interest in ensuring that the provisions of the Directive are adhered to, may engage in any relevant judicial and/or administrative procedure. This is without prejudice to national time limits for bringing equality actions.
If a person establishes a prima facie case of direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
Member States should ensure the protection of employees against dismissal or any other adverse treatment by the employer as a reaction following a complaint within the undertaking, or any ensuing legal proceedings.
Member States should, in accordance with national traditions and practice, promote dialogue between the social partners in order to foster equal treatment. This would include the monitoring of workplace practices, collective agreements and codes of conduct and the exchange of experience and good practice. Member States should encourage the social partners to conclude – at the appropriate level – anti-discrimination agreements in fields which fall within the scope of collective bargaining, respecting the minimum requirements of this Directive and national implementing measures.
Particular provisions concerning Northern Ireland
Differences in treatment regarding recruitment – including support staff – into the police service of Northern Ireland shall not be considered as discrimination if they aim to tackle the under-representation of one of the major religious communities in the service, and this is expressly authorised by national legislation. In effect, this will allow positive discrimination in favour of roman catholics, as provided for by the UK's Police (Northern Ireland) Act.
Second, provisions relating to discrimination based on religion or belief will not apply to the recruitment of teachers in schools in Northern Ireland, if this is expressly authorised by national legislation. This is aimed at maintaining a balance of opportunity in employment for teachers in Northern Ireland and furthering the "reconciliation of historical divisions between the major religious communities there" – schools in Northern Ireland are still largely organised according to protestant or catholic religious beliefs.
This Article was inserted in order to ensure that the operation of specific UK legislation relating to the religious situation in Northern Ireland may be maintained.
Compliance and sanctions
Member States must ensure that any laws, regulations and administrative provisions which are contrary to the principle of equal treatment are abolished.
Member States must also lay down sanctions, relating to infringements of the national implementing provisions, which are effective, proportionate and dissuasive.
Members States will have three years – until 2 December 2003 – to comply with the provisions of this Directive, with the exception of the provisions relating to discrimination based on age and disability. In this case, Member States may have a further three years – until 2 December 2006. If Member States choose the six-year implementation period, they must report annually to the Commission on the steps they are taking to tackle age and disability discrimination.
The Directive entered into force on 2 December 2000, the day it was published in the Official Journal.
Social partner views on the Directive
The adoption of this Directive has been welcomed by the European Trade Union Confederation (ETUC) as "an indispensable first step and an important tool in the fight against discrimination." In particular, ETUC considers as real steps forward: the inclusion of harassment in the scope of the Directive; the distinction between direct and indirect discrimination; the fact that associations can institute legal proceedings; and the shifting of the burden of proof onto the defendant.
Nevertheless, ETUC notes that the real test of the Directive will be in its implementation and has a number of concerns. Specifically, it would like to see the drawing up of a specific Directive in the area of discrimination which would form part of European legislation on health and safety at the workplace. It would also like to see the framework Directive supported by a range of specific Directives which deal with the different forms of discrimination outlined it the framework text.
In terms of social dialogue, ETUC would like to supplement the Directive with agreements between the social partners at European level and also at sectoral level and at the level of individual enterprises. ETUC is also concerned that the Directive does not prohibit differences of treatment based on nationality.
The Union of Industrial and Employers' Confederations of Europe (UNICE) has declared its support for the goal of combating discrimination, and in general welcomes general EU-level frameworks as long as there is sufficient margin to take account of Member States' specific legal situations and traditions. However, it remains highly critical of the fact that the European Commission did not consult the social partners prior to issuing the proposal for this Directive. Specific UNICE concerns with the Directive include the question of whether there is a need for a "horizontal" approach to non-discrimination – UNICE maintains that the different types of discrimination covered by the Directive correspond to different problems "and require a differentiated approach". In particular, it maintains that age-related questions are more related to labour market policies than anti-discrimination policy and that applying indirect discrimination to disability may raise problems of application. UNICE also feels that a reversal of the burden of proof implies a significant modification of Member States' legal systems and may lead to an increase in the number of court cases.
The adoption of this Directive, together with the Directive aiming to combat discrimination based on racial and ethnic origin, will have a significant impact. It considerably widens the scope of EU-level regulation in the field of discrimination, from discrimination based on sex to discrimination based on a wide range of counts. The swiftness with which the two Directives have been adopted has also surprised many commentators – almost exactly one year elapsed between the issuing of the proposal for the two Directives and the adoption of both. The impact of the framework Directive is likely to be felt in virtually all Member States, particularly in the area of discrimination based on age (TN0010201S), disability (TN0102201S) and sexual orientation. Many countries have already begun to draft legislation amending existing anti-discrimination provisions, in anticipation of the coming into force of the Directive. Thus, new legislation has been drafted inDenmark (DK0102113N) and France has recently been debating new anti-discrimination laws (FR0011198N). (Andrea Broughton, IRS)