17. AMENDING THE 1976 EQUAL TREATMENT
DIRECTIVE
(23497)
PE-CONS 3624/02
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Draft Directive amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions: Joint text approved by the Conciliation Committee provided for in Article 251(4) of the EC Treaty.
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| Legal base: | Article 141EC; co-decision; qualified majority voting
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| Deposited in Parliament: | 28 May 2002
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| Department: | Trade and Industry
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| Basis of consideration: | Minister's letter and EM of 30 May 2002
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| Previous Committee Report: | None; but see (23013) 14492/01: HC 152-xii (2001-02), paragraph 1 (16 January 2002)
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| To be discussed in Council: | 13 June 2002
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | Cleared
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Background
17.1 The Minister for Women (Mrs Barbara Roche) wrote
to us on 8 May to report the outcome of the conciliation process
on this Directive which brings the 1976 Equal Treatment Directive
(76/207/EEC) up to date. At that time, she undertook to send us
a copy of the final text when it became available.
17.2 The Secretary of State for Trade and Industry (Ms
Patricia Hewitt) has now deposited a copy of the final text, together
with a letter and Explanatory Memorandum. At the time of her letter,
it appeared that the text would be agreed on 6 June, during the
parliamentary recess. The Minister apologises for the timing,
caused by the tight deadline set by the conciliation process.
In the event, however, it has proved possible to delay agreement
until 13 June.
The final text
17.3 In her helpful Explanatory Memorandum the Minister
lists the main ways in which the new Directive amends the 1976
Equal Treatment Directive as follows:
"— Add to Art 1 a duty on Member States to take
equality into account when formulating policy and law in areas
covered by the Directive
- Add to Art 2 (1) definitions of direct discrimination and
of indirect discrimination — the indirect discrimination
definition being aligned with that in the Article 13 Directive,
thus necessitating amendment in due course to the Burden of Proof
Directive 97/80/EC.
- Add to Art 2 (1) definitions of harassment and sexual harassment,
confirmation that they are unlawful discrimination and a requirement
on Member States to encourage employers to take measures against
sexual harassment
- Substitute Art 2 (2) with wording which retains the ability
to establish a genuine occupational qualification for a job holder
being of one sex but enforces the principle of proportionality
to reflect European Court of Justice case law. Thus it enables
a restriction on access to front line posts in certain parts of
the Armed Forces on combat effectiveness grounds if that is a
proportionate policy.
- Substitutes a new Art 2 (3) providing that less favourable
treatment relating to pregnancy or maternity leave constitutes
sex discrimination and confirming rights to return to the same
or equivalent work, and to benefit from improvements to terms
and conditions; and that similar protection for parents on adoption
leave and men on paternity leave in Member States which have such
leave
- Substitute Art 2 (4) with a 'positive action' clause related
to article 141(4) of the Treaty.
- Expands Art 3 (1) and sets out the scope of the Directive
to cover employment, self employment and occupation in the public
and private sectors and vocational training. It also covers workers'
or employers' organisations and reflects the wording used in the
Article 13 Directives.[37]
- Substitute Art 6 to ensure that Member States introduce redress
mechanisms to provide for dissuasive compensation or reparation
for individuals who experience discrimination, even after the
end of the employment relationship, but to allow national time
limits.
- Expand Art 6 to allow organisations (like the Equal Opportunities
Commission) which have an interest in national law to support
individuals bringing a sex discrimination claim.
- Expand Art 7 to protect individuals against victimisation
by an employer in reaction to a complaint
- Add a new Art 8a to allow Member States to set up bodies to
promote equal treatment, support individuals, carry out research
and report on discrimination.
- Add a new Art 8b to require Member States to work with the
social partners to promote equal treatment and improve collective
agreements (consistent with national practices).
- Add a new Art 8c to promote dialogue between Member States
and relevant Non-Governmental Organisations.
- Add a new Art 8d to require Member States to define sanctions
for discrimination.
- Define an implementation date of three years and a general
duty to inform the European Commission of compliance."
The Government's view
17.4 The Minister says:
"The UK Government has always believed it was appropriate
to update the Equal Treatment Directive. It is satisfied that
the revised Directive will strengthen the principle of equal treatment
and its practical implementation, and that the changes will make
the law clearer, by incorporating case law. Whilst not imposing
significant new burdens on employers, the Directive means that
employers must avoid discriminating in recruitment, in training
or in working conditions, as now. They should ensure that they
have a policy to prevent harassment, which is already unlawful
in the UK but will now be formally defined."
17.5 The Minister tells us that the implementation date
will be three years after the Directive is adopted.
Conclusion
17.6 We are disturbed to learn that the tight timescale
referred to in the Minister's letter was caused by the five weeks
it took the Jurists-Linguists to issue the final text. We ask
the Minister to convey our dissatisfaction with the situation
to those responsible.
17.7 It is encouraging, however, that it has proved
possible to delay agreement to the text until we have had this
final chance to see it. We also appreciate the way in which both
Ministers have been at pains to keep us informed through the later
stages of this proposal's long progress, in marked contrast to
some failures earlier in the process.
17.8 We clear the document.
37 43/2000/EC
and 78/2000/EC. Back
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