Fair wind from Europe

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, where people with disabilities, the
elderly, lesbians and gays can go about their business knowing they’re
protected from discrimination may seem as likely as a Frank Dobson’s mayoralty.
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 of measures aimed at giving a common
level of protection against discrimination rights across the European Union.

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". In addition, the moves could 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 goods and services and social
protection.

In
addition, the commissioners have published an action programme to support
implementation of the directives and disseminate best practice. While the
Government says it welcomes the proposals to harmonise law across member
states, the anti-discrimination landscape the EU painted clashes quite
drastically 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". 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 Confederation of British Industry 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 employees in the same way. More importantly,
says Best, the directive 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 Trades Union Congress (TUC), says,
"It will make a difference to companies who 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
with 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.

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?" says Ms Best.

She
argues that the directive fails to make it clear to whom a person alleging age
discrimination should compare him or herself. In a case where the complainant
is 35 years old should the comparator be an older or younger person?

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 their pensions policies allow the partners of lesbian and gay employees
to receive the same benefits as heterosexual members of 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. Best agrees. With such a loose definition we are in danger
of creating fuzzy law, she says.

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 enshrined in the current
directive says a provision is indirectly discriminatory if "it is likely
to adversely affect a person or group of person".

The
Commission’s definition makes it hard to put your finger on indirect
discrimination and therefore makes 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 trundling off to
employment tribunals. But getting agreement among 15 European states is
notoriously difficult.

If
the end result is too broad, member states will implement it differently. This
could result in a steady stream of cases queuing up at the European Court of
Justice, says Ms Dineley.

Commentators
expect the finished 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 the employment tribunals for help.

The
Equal Opportunities Commission could carry out enforcement and the CRE, which
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 to give small businesses better access to information about
equality issues. It has also 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 and produce
joint guidance. 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 the
presidency in July. If the Portuguese do not get their way before the summer,
agreement could be delayed until the Swedish presidency in 2001.

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 both 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.

In
addition, there is a proposal for 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. Telephone: 01933 225552

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 under Criminal Code with
imprisonment for up to one year and/or fine of up to FF200,000.

–
Labour Code provides no employee may be dismissed or subjected to disciplinary
action 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. However, law requires employers to advertise positions as open to
both sexes.

–
Under Civil Code employer prohibited from discriminating either directly or
indirectly on basis of gender.

–
Discrimination claimants must prove employer disregarded anti-discrimination
rules. Burden of proof then rests with employer to show no discrimination.

Italy

–
All forms of sex discrimination prohibited under Sex Rights Equalisation Law.
Discrimination can result from any act or behaviour-

–
Worker may start a discrimination action in Labour Court where burden of proof
is on defendant.

–
Any enterprise employing more than 100 workers must submit a report biannually
to union representatives showing numbers of men and women employed in each
category, and statistics on promotion and salary.

Belgium

–
Constitution provides all persons equal by law and prohibits discrimination.

–
Imprisonment or fines for all acts inciting discrimination, hate or violence
based on racial or xenophobic grounds and perpetrated in public.

–
Special requirements imposed on employers when recruiting and selecting
personnel, such as not treating candidates in a discriminatory manner.

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 generally 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 discriminatory is null and void. This
covers sex, marital status, ethnic origin, race, disability, social status,
union activities, ideology and any other reasons.

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 the anti-discrimination arena, it has ccepted
virtually wholesale 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 between different 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 often by employers struggling to adopt a workable
approach to equal opportunities and to avoid breaking the laws.

The
task force recommended the commissions and their sponsor departments should
adopt a more "strategic, joined up and targeted approach",
acknowledging that its proposals could be seen as paving the way for the
integration of the equality regimes in time.

The
Government has declared 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 and enabling
them to produce joint guidance

–
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 already striving to work more
closely together. Julie Mellor, chairwoman of the EOC and also a CRE
commissioner, points to recent efforts to co-ordinate its work with that of the
race body. "It’s a very synergistic approach. We don’t compete for media
coverage and we follow each other’s issues very closely."

Bert
Massie, chairman of the DRC, says he has written recently 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 both the draft EU directives and the
imminent Human Rights Act, is the eventual merging of the equality regimes
inevitable?

Sir
Herman Ouseley, who leaves his post as chairman of the CRE this month, 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. I think it [a human rights commission] is
about three or four years away."

Massie,
on the other hand, does not believe there is any case for a merger. "At
the moment the discrimination disabled people face is different from that of
race and gender. The latter two are generally attitudinal and organisational.
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 disabled people. My constituency of 8.5 million people is
quite big enough and I am completely focused on that. But I hope we can learn
from the work of the other commissions and I hope we can teach them things as
well."

Given
the tide of change, he may find that line increasingly hard to defend.