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Previous Article Next Article New legislation proposed by the European Commission looks set to havefar-reaching effects on dealing with workplace prejudice across member statesA world where racism is not tolerated, and people with disabilities, theelderly and homosexuals can go about their business protected fromdiscrimination may seem just a dream.But no ambition is too large for the European Union, and the socialreformers in Brussels are determined to make it a reality – at least withinmember states. At the end of last year, European Commissioner for Employment and SocialAffairs Anna Diamantopoulou announced a package aimed at giving a common levelof protection against discrimination rights across the EU.The proposals are the first to be brought forward under Article 13 of the ECTreaty that obliges EU ministers to introduce laws to combat discrimination. Inthe UK this could mean new anti-discrimination laws covering age, religion andbelief, sexual orientation and “lifestyle”. The moves could also havean impact on what is considered “indirect discrimination” in Britain.The Portuguese presidency is said to be fully behind the moves anddetermined to get agreement among member states by this summer. The package ofproposals consists of two draft directives. The first bans discrimination atwork on grounds of racial or ethnic origin, religion or belief, disability, ageor sexual orientation. The second has a larger remit and bans discrimination on the grounds ofracial 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 acrossmember states, the anti-discrimination landscape the EU painted clashes withNew Labour’s vision, which sees its mission to “avoid unnecessary andburdensome regulation and promote, encourage and support progress through non-legislative means”.Minimising red tapeLike most new proposals for legislation, the drafts will be subjected to a RegulatoryImpact Assessment by government, designed to minimise burdensome andunnecessary red tape.A similar contradiction exists for employers. Sarah Best, equalopportunities policy adviser for the CBI, says the employers’ body welcomes theproposals.Giving European citizens equal rights wherever they live will help tackleunfair competition in the EU – the directive will force all employers to treattheir staff in the same way. More important, says Best, it will facilitatefreedom of movement. Anecdotal evidence from research carried out by the Runnymede Trust showedsome black and Asian employees in Britain’s top companies were nervous ofworking in countries such as France, Germany and Austria because they fearedless protection against racism.Kay Carberry, head of equal rights at the TUC, says, “It will make adifference to companies which want to send people abroad and help black andethnic minorities who want to exercise their right to work abroad and havegreater protection.”But the imposition of a whole new bundle of obligations and restrictions isunlikely to find favour with the majority of employers already struggling witha rocketing number of sex, race and disability discrimination cases and theunlimited compensation cap for transgressions. Protection against discrimination varies among member states. Some aspectsof the directives will have minimal effect in the UK, “whereanti-discrimination law is streets ahead of some member states”, saysRachel Dineley, lawyer at Beachcroft Wansbroughs.The race directive draws heavily on the UK’s Race Relations Act andcommentators believe it will have little impact on existing laws and practicehere.However, other proposals call for changes that have a far wider remit. Forexample, discrimination on grounds of religion or belief would be banned. Although Northern Ireland already has laws protecting people from unfairtreatment because of their religion, the concept would be new to the rest ofthe UK. Dineley says the vagueness of some of the definitions in the directive willcause problems. “How broadly can you interpret belief?” she asks.”Some people nurture political beliefs with more conviction than others dotheir 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 thedirective is implemented as it stands, the Disability Discrimination Act, whereemployers have to make “reasonable adjustment”, would have to bechanged, although it could not be watered down. National customThe directives set down minimum standards and the commission wants memberstates to introduce laws that offer citizens even greater protection thanproposed. They also allow member states to implement the directives in linewith national custom and practice.Provisions governing age discrimination are causing member states thegreatest concern. In the UK, employers are happy with the voluntary code ofconduct, launched by the Prime Minister last June, that allows employers moreflexibility than proposed in the directive.The CBI is unconvinced about the need for legislation outlawing agediscrimination 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 ifthey are 60 years old and the company could argue that it wouldn’t get a returnon its investment?”She argues the directive fails to make it clear to whom a person allegingage 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 managementdecision such as someone’s suitability for redundancy or promotion could bechallenged on the grounds of age discrimination, she says.Until these difficulties are resolved the CBI believes the commission’sprogramme is the most effective tool for achieving diversity in the workplaceby promoting good practice and encouraging older workers to stay in their jobs.New laws preventing discrimination on the grounds of sexual orientationwould also need to be introduced. The CBI is involved in government discussionson a voluntary code covering the area. Best says in the future employers may needto check that their pensions policies allow partners of lesbian and gayemployees the same benefits as heterosexual staff.Also, both directives contain definitions of indirect discrimination”which are different from the definitions of indirect discriminationenshrined in current European law”, says Carberry. At the moment thedefinition is also unworkable, she says.Fuzzy lawBest says with such a loose definition we are in danger of creating fuzzylaw. There is already an acceptable definition in the Burden of Proof directivethat states a provision must have a disproportionate impact on a particulargroup to be discriminatory. By contrast, the definition in the currentdirective says a provision is indirectly discriminatory if “it is likely toadversely affect a person or group”.The commission’s definition makes it hard to put your finger on indirectdiscrimination, making it unreasonably hard for an employer to defend, saysBest.The CBI wants the commission to adopt definitions already used in UK andEuropean courts. Not to do so could result in thousands more cases going totribunal. But getting agreement among 15 European states is notoriously difficult. Ifthe end result is too broad, they will implement it differently.Commentators expect the directives to be watered down during theconsultation process so fears of employers drowning under red tape may beexaggerated. The directives require member states to have structures that allow people toassert their rights. Dineley says in the UK those who have been discriminatedagainst are likely to turn to tribunals for help. The Equal Opportunities Commission and the CRE could have their rolesexpanded 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 isexamining ways of giving small businesses better access to information aboutequality issues. It has accepted proposals to harmonise the provisions of theRace Relations, Sex Discrimination and Disability Discrimination Acts and tostrengthen the powers of the EOC and CRE to match those of the DisabilityRights Commission.There are plans to make it easier for the commissions to work together. However, ministers have rejected calls for a “super commission” tocombat 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 inJuly. If the Portuguese do not get their way, agreement could be delayed untilthe Swedish presidency in 2001.This is an edited extract from an article which first appeared in theApril-May issue of Employers’ Law. A one-year UK subscription is £65, contact01444 445566Provisions of draft directives1 Directive to implement the principle of equal treatment betweenpersons irrespective of racial or ethnic originThe directive is intended to implement the principle of equal treatmentbetween people of different racial or ethnic origins in all member states. Thisdoes not prohibit differences of treatment based on nationality. It will coverdirect and indirect discrimination as well as harassment and victimisation.It will cover access to employment and self-employed activities and workingconditions; membership of organisations; social protection and social security;social advantages; education including grants and scholarships; and access toand supply of goods and services.2 Directive to establish a general framework for equal treatment inemployment and occupation.The intention here is to implement the principle of equal treatment betweenpeople 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 andoccupation; promotion; vocational training and employment; conditions andmembership of certain bodies. Both direct and indirect discrimination arecovered as well as harassment and victimisation. There is also a proposal for a third directive to establish a communityaction programme to combat discrimination on the grounds of racial or ethnicorigin, religion or belief, disability, age and sexual orientation. This willrun from 2001-2006.Source: Discrimination Law Association Comments are closed. Fair wind from EuropeOn 16 May 2000 in Personnel Today The view from EuropeFrance• Discrimination on grounds of lifestyle (covers homosexuality, maritalstatus 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 upto 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, unionactivities, religious beliefs or using right to strike.Germany• Equal treatment rule prohibits discriminatory treatment on basis ofgender, ancestry, race, disability, language, origin, faith, religious orpolitical opinions. Has been applied to arbitrary discrimination on groundssuch as sexual orientation.• Rule on gender discrimination has yet to apply to discrimination whenseeking employment. Law requires employers to advertise positions as open toboth sexes.• Under Civil Code, employer is prohibited from discriminating directly orindirectly 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 ofproof is on defendant.• Any enterprise employing more than 100 must submit a report biannually tounion showing number of men and women employed in each category, and statisticson promotion and pay.Netherlands• Party to a number of international agreements prohibiting discriminationon grounds of sex, race, colour, language, ideology, nationality or socialorigin. Domestic legislation also prohibits disability discrimination.• Direct and indirect sex discrimination in recruitment ads or applicationprocedures prohibited under Dutch law.• Forbids gender discrimination in pay.Spain• Any legal provision, collective agreement clause, contractual stipulationor unilateral employer decision shown to be biassed is null and void. Thiscovers 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 approachWhile the Government is publicly committed to avoiding “more unnecessary andburdensome regulation” in anti-discrimination, it has accepted a pile ofproposals for change put forward by the Better Regulation Task Force in itsreport on anti-discrimination legislation.The task force, set up by the Cabinet Office but working independently, saidit was “not persuaded of the need for major legislative overhaul at thisstage – either in relation to the individual regimes or in bringing themtogether”.But it identified as an urgent problem the lack of co-ordination and consistencyamong government departments and the equality commissions. This “piecemealapproach” ran the risk of building “perverse, discriminatoryeffects” into new legislation, it warned. It is a complaint heard by employers struggling to adopt a workable approachto equal opportunities.The task force recommended the commissions and their sponsor departmentsshould adopt a more “strategic, joined-up and targeted approach”,acknowledging its proposals could be seen as paving the way for integrating theequality regimes.The Government said it will legislate “where practicable” and”when time permits” to improve consistency. Among the priorities setout in an equality statement announced by cabinet office minister IanMcCartney, were:• Harmonising the provisions of the Race Relations, Sex and DisabilityDiscrimination Acts, • Aligning the equality commissions’ powers – strengthening the powers ofthe 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 RaceRelations (Amendment) Bill and extending this principle to the SDA and the DDA.There is evidence that the equality commissions are striving to work moreclosely together. Bert Massie, chairman of the DRC, says he has written to theEOC and CRE offering them observer status on the new body. But given the problems identified by the task force and the inevitableexpansion of anti-discrimination law inherent in the draft EU directives and theimminent Human Rights Act, is the merging of the equality regimes inevitable?Sir Herman Ouseley, former chairman of the CRE, believes it is a naturalnext step, provided the enforcement powers are not diluted. “Increasinglywe have to look at how we all emerge within some unified body at some time inthe future, say about three or four years away.”Massie does not believe there is a case for merger. “At the moment thediscrimination 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. Itis about making reasonable adjustments. Until we have established our ownagenda, talk of a merger will be resisted.”My job is to look after a constituency of 8.5 million disabled peopleand I am focused on that. But I hope we can learn from the work of the othercommissions and that we can teach them things as well.” Given the tide ofchange, he may find that line increasingly hard to defend. Related posts:No related photos.