New legislation proposed by the European Commission looks set to have
far-reaching effects on dealing with workplace prejudice across member states
A world where racism is not tolerated, and people with disabilities, the
elderly and homosexuals can go about their business protected from
discrimination may seem just a dream.
But no ambition is too large for the European Union, and the social
reformers in Brussels are determined to make it a reality – at least within
member states.
At the end of last year, European Commissioner for Employment and Social
Affairs Anna Diamantopoulou announced a package aimed at giving a common level
of protection against discrimination rights across the EU.
The proposals are the first to be brought forward under Article 13 of the EC
Treaty that obliges EU ministers to introduce laws to combat discrimination. In
the UK this could mean new anti-discrimination laws covering age, religion and
belief, sexual orientation and "lifestyle". The moves could also have
an impact on what is considered "indirect discrimination" in Britain.
The Portuguese presidency is said to be fully behind the moves and
determined to get agreement among member states by this summer. The package of
proposals consists of two draft directives. The first bans discrimination at
work on grounds of racial or ethnic origin, religion or belief, disability, age
or sexual orientation.
The second has a larger remit and bans discrimination on the grounds of
racial or ethnic origin in a wider range of areas including employment,
education, the provision of services and social protection.
While the Government says it welcomes the proposals to harmonise law across
member states, the anti-discrimination landscape the EU painted clashes with
New Labour’s vision, which sees its mission to "avoid unnecessary and
burdensome regulation and promote, encourage and support progress through non-
legislative means".
Minimising red tape
Like most new proposals for legislation, the drafts will be subjected to a Regulatory
Impact Assessment by government, designed to minimise burdensome and
unnecessary red tape.
A similar contradiction exists for employers. Sarah Best, equal
opportunities policy adviser for the CBI, says the employers’ body welcomes the
proposals.
Giving European citizens equal rights wherever they live will help tackle
unfair competition in the EU – the directive will force all employers to treat
their staff in the same way. More important, says Best, it will facilitate
freedom of movement.
Anecdotal evidence from research carried out by the Runnymede Trust showed
some black and Asian employees in Britain’s top companies were nervous of
working in countries such as France, Germany and Austria because they feared
less protection against racism.
Kay Carberry, head of equal rights at the TUC, says, "It will make a
difference to companies which want to send people abroad and help black and
ethnic minorities who want to exercise their right to work abroad and have
greater protection."
But the imposition of a whole new bundle of obligations and restrictions is
unlikely to find favour with the majority of employers already struggling with
a rocketing number of sex, race and disability discrimination cases and the
unlimited compensation cap for transgressions.
Protection against discrimination varies among member states. Some aspects
of the directives will have minimal effect in the UK, "where
anti-discrimination law is streets ahead of some member states", says
Rachel Dineley, lawyer at Beachcroft Wansbroughs.
The race directive draws heavily on the UK’s Race Relations Act and
commentators believe it will have little impact on existing laws and practice
here.
However, other proposals call for changes that have a far wider remit. For
example, discrimination on grounds of religion or belief would be banned.
Although Northern Ireland already has laws protecting people from unfair
treatment because of their religion, the concept would be new to the rest of
the UK.
Dineley says the vagueness of some of the definitions in the directive will
cause problems. "How broadly can you interpret belief?" she asks.
"Some people nurture political beliefs with more conviction than others do
their religion," she says.
The directive also says employers must make "reasonable accommodation"
for people with disabilities. This too is a vague term, says Dineley and if the
directive is implemented as it stands, the Disability Discrimination Act, where
employers have to make "reasonable adjustment", would have to be
changed, although it could not be watered down.
National custom
The directives set down minimum standards and the commission wants member
states to introduce laws that offer citizens even greater protection than
proposed. They also allow member states to implement the directives in line
with national custom and practice.
Provisions governing age discrimination are causing member states the
greatest concern. In the UK, employers are happy with the voluntary code of
conduct, launched by the Prime Minister last June, that allows employers more
flexibility than proposed in the directive.
The CBI is unconvinced about the need for legislation outlawing age
discrimination and condemns the proposals as unworkable. According to Best,
"As yet there is no societal consensus where age discrimination is unfair.
Would it be unfair for business to reject an applicant for legal training if
they are 60 years old and the company could argue that it wouldn’t get a return
on its investment?"
She argues the directive fails to make it clear to whom a person alleging
age bias should compare him or herself. In a case where the complainant is 35,
should the comparator be older or younger? Also any day-to-day management
decision such as someone’s suitability for redundancy or promotion could be
challenged on the grounds of age discrimination, she says.
Until these difficulties are resolved the CBI believes the commission’s
programme is the most effective tool for achieving diversity in the workplace
by promoting good practice and encouraging older workers to stay in their jobs.
New laws preventing discrimination on the grounds of sexual orientation
would also need to be introduced. The CBI is involved in government discussions
on a voluntary code covering the area. Best says in the future employers may need
to check that their pensions policies allow partners of lesbian and gay
employees the same benefits as heterosexual staff.
Also, both directives contain definitions of indirect discrimination
"which are different from the definitions of indirect discrimination
enshrined in current European law", says Carberry. At the moment the
definition is also unworkable, she says.
Fuzzy law
Best says with such a loose definition we are in danger of creating fuzzy
law.
There is already an acceptable definition in the Burden of Proof directive
that states a provision must have a disproportionate impact on a particular
group to be discriminatory. By contrast, the definition in the current
directive says a provision is indirectly discriminatory if "it is likely to
adversely affect a person or group".
The commission’s definition makes it hard to put your finger on indirect
discrimination, making it unreasonably hard for an employer to defend, says
Best.
The CBI wants the commission to adopt definitions already used in UK and
European courts. Not to do so could result in thousands more cases going to
tribunal.
But getting agreement among 15 European states is notoriously difficult. If
the end result is too broad, they will implement it differently.
Commentators expect the directives to be watered down during the
consultation process so fears of employers drowning under red tape may be
exaggerated.
The directives require member states to have structures that allow people to
assert their rights. Dineley says in the UK those who have been discriminated
against are likely to turn to tribunals for help.
The Equal Opportunities Commission and the CRE could have their roles
expanded to deal with sexual orientation and religion and belief respectively.
A new body may be needed to protect citizens from age discrimination.
The Government has commissioned research on religious discrimination and is
examining ways of giving small businesses better access to information about
equality issues. It has accepted proposals to harmonise the provisions of the
Race Relations, Sex Discrimination and Disability Discrimination Acts and to
strengthen the powers of the EOC and CRE to match those of the Disability
Rights Commission.
There are plans to make it easier for the commissions to work together.
However, ministers have rejected calls for a "super commission" to
combat discrimination and uphold human rights.
The Portuguese have two months to push their proposals through. The French,
who are thought to be less enthusiastic about the measures, will take over in
July. If the Portuguese do not get their way, agreement could be delayed until
the Swedish presidency in 2001.
This is an edited extract from an article which first appeared in the
April-May issue of Employers’ Law. A one-year UK subscription is £65, contact
01444 445566
Provisions of draft directives
1 Directive to implement the principle of equal treatment between
persons irrespective of racial or ethnic origin
The directive is intended to implement the principle of equal treatment
between people of different racial or ethnic origins in all member states. This
does not prohibit differences of treatment based on nationality. It will cover
direct and indirect discrimination as well as harassment and victimisation.
It will cover access to employment and self-employed activities and working
conditions; membership of organisations; social protection and social security;
social advantages; education including grants and scholarships; and access to
and supply of goods and services.
2 Directive to establish a general framework for equal treatment in
employment and occupation.
The intention here is to implement the principle of equal treatment between
people no matter what their race or ethnic origin, religion or belief,
disability, age or sexual orientation.
It is intended to apply in the areas of: access to employment and
occupation; promotion; vocational training and employment; conditions and
membership of certain bodies. Both direct and indirect discrimination are
covered as well as harassment and victimisation.
There is also a proposal for a third directive to establish a community
action programme to combat discrimination on the grounds of racial or ethnic
origin, religion or belief, disability, age and sexual orientation. This will
run from 2001-2006.
Source: Discrimination Law Association
The view from Europe
France
• Discrimination on grounds of lifestyle (covers homosexuality, marital
status and appearance) outlawed.
• Sex discrimination prohibited in all aspects of fixed-term contracts.
• Hiring or firing on grounds of origin, sex, lifestyle, family situation,
nationality, disability, race or religion punishable with imprisonment for up
to a year and/or fine of up to FFr200,000.
• No employee may be dismissed or disciplined on grounds of origin, sex,
family situation, ethnicity, nationality or race, political opinions, union
activities, religious beliefs or using right to strike.
Germany
• Equal treatment rule prohibits discriminatory treatment on basis of
gender, ancestry, race, disability, language, origin, faith, religious or
political opinions. Has been applied to arbitrary discrimination on grounds
such as sexual orientation.
• Rule on gender discrimination has yet to apply to discrimination when
seeking employment. Law requires employers to advertise positions as open to
both sexes.
• Under Civil Code, employer is prohibited from discriminating directly or
indirectly on basis of gender.
• Discrimination claimants must prove employer disregarded anti-bias rules.
Burden of proof rests with employer.
Italy
• All sex discrimination prohibited under Sex Rights Equalisation Law.
• Worker may start a discrimination action in Labour Court where burden of
proof is on defendant.
• Any enterprise employing more than 100 must submit a report biannually to
union showing number of men and women employed in each category, and statistics
on promotion and pay.
Netherlands
• Party to a number of international agreements prohibiting discrimination
on grounds of sex, race, colour, language, ideology, nationality or social
origin. Domestic legislation also prohibits disability discrimination.
• Direct and indirect sex discrimination in recruitment ads or application
procedures prohibited under Dutch law.
• Forbids gender discrimination in pay.
Spain
• Any legal provision, collective agreement clause, contractual stipulation
or unilateral employer decision shown to be biassed is null and void. This
covers sex, marital status, ethnic origin, race, disability, social status,
union activities, ideology and any other reason.
• Prepared with the help of Clare Murray and Michael Delaney at Fox Williams
Working towards a joined-up approach
While the Government is publicly committed to avoiding “more unnecessary and
burdensome regulation” in anti-discrimination, it has accepted a pile of
proposals for change put forward by the Better Regulation Task Force in its
report on anti-discrimination legislation.
The task force, set up by the Cabinet Office but working independently, said
it was "not persuaded of the need for major legislative overhaul at this
stage – either in relation to the individual regimes or in bringing them
together".
But it identified as an urgent problem the lack of co-ordination and consistency
among government departments and the equality commissions. This "piecemeal
approach" ran the risk of building "perverse, discriminatory
effects" into new legislation, it warned.
It is a complaint heard by employers struggling to adopt a workable approach
to equal opportunities.
The task force recommended the commissions and their sponsor departments
should adopt a more "strategic, joined-up and targeted approach",
acknowledging its proposals could be seen as paving the way for integrating the
equality regimes.
The Government said it will legislate "where practicable" and
"when time permits" to improve consistency. Among the priorities set
out in an equality statement announced by cabinet office minister Ian
McCartney, were:
• Harmonising the provisions of the Race Relations, Sex and Disability
Discrimination Acts,
• Aligning the equality commissions’ powers – strengthening the powers of
the EOC and CRE to match those of the new DRC,
• Removing legislative barriers to the commissions working together,
• Combating institutional racism in all public functions via the Race
Relations (Amendment) Bill and extending this principle to the SDA and the DDA.
There is evidence that the equality commissions are striving to work more
closely together. Bert Massie, chairman of the DRC, says he has written to the
EOC and CRE offering them observer status on the new body.
But given the problems identified by the task force and the inevitable
expansion of anti-discrimination law inherent in the draft EU directives and the
imminent Human Rights Act, is the merging of the equality regimes inevitable?
Sir Herman Ouseley, former chairman of the CRE, believes it is a natural
next step, provided the enforcement powers are not diluted. "Increasingly
we have to look at how we all emerge within some unified body at some time in
the future, say about three or four years away."
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Massie does not believe there is a case for merger. "At the moment the
discrimination disabled people face is different from that of race and gender.
For disabled people it is about the width of a door, the height of a desk. It
is about making reasonable adjustments. Until we have established our own
agenda, talk of a merger will be resisted.
"My job is to look after a constituency of 8.5 million disabled people
and I am focused on that. But I hope we can learn from the work of the other
commissions and that we can teach them things as well." Given the tide of
change, he may find that line increasingly hard to defend.
