Not content with recently introducing laws in new areas – such as
protections for fixed-term workers, temporary agency workers, age
discrimination and religious discrimination – the European Union is also
proving a fertile source of changes to laws that already exist in the UK. A
major example of this is the updated Equal Treatment Directive adopted by the
European Union’s Council of Ministers in 2002. This updates the 25-year-old
provisions in the original Equal Treatment Directive, and the changes must be
introduced here by late 2005.
The major changes for the UK in sex discrimination law will be:
– Direct discrimination will be defined differently to the definition in the
Sex Discrimination Act 1975. It is not framed in terms of a woman being treated
less favourably than a man, but gender neutrally, as less favourable treatment
"on grounds of sex". It will be wide enough to include as sex
discrimination where, for example, a man refuses to carry out a sexist
instruction and is treated detrimentally as a result.
– There is a new definition of indirect discrimination – the third
definition we have had in as many years. It differs both from the traditional
UK definition, and the Burden of Proof Directive definition. Instead of
challenging provisions to the detriment of a considerably larger proportion of
women than of men, it simply talks about putting one sex "at a particular
disadvantage". The intention is to do away with the need to produce
statistical evidence, but it does provide for a tribunal to continue to look at
statistical evidence if it so chooses.
– To the astonishment of many HR practitioners, the new directive includes
not one, but two definitions of harassment – the first where overtly sexual
treatment does not occur, and the second relating specifically to sexual
harassment. To be unlawful, non-sexual harassment must be shown to create an
intimidating, hostile, degrading, humiliating or offensive environment. That is
not a prerequisite of sexual harassment, which is framed in a more subjective
way. In both, it will be necessary to prove there has been ‘unwanted’ conduct
which has the purpose or effect of violating the dignity of a person. However,
this conduct need not be directed or aimed at the particular complainant.
– As to remedies, the new directive provides that discrimination and
harassment complaints can still be made by individuals even after their
employment has terminated. This will sweep away the debate about whether or not
victimisation claims can apply in this situation.
– Member states will have a specific legal obligation to encourage employers
to promote equal treatment for men and women in the workplace in a planned and
systematic way, reinforcing the quasi-legal obligation for employers to have
equal opportunities policies.
– Finally, there is a new obligation of ‘mainstreaming’ discrimination
issues – member states will be legally obliged actively to take into account
the objective of sex equality when formulating and implementing laws,
regulations, policies and activities.