Select Committee on European Scrutiny Twenty-Second Report


9 Equal treatment of men and women in employment

(25579)

8839/04

COM(04) 279

+ ADD 1

Draft Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in employment and occupation (recast version)

Commission staff working paper — Extended Impact Assessment

Legal baseArticle 141(3) EC; co-decision; QMV
Document originated21 April 2004
Deposited in Parliament28 April 2004
DepartmentTrade and Industry
Basis of considerationEM of 13 May 2004
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information requested

Background

9.1 Article 2 of the EC Treaty specifies promotion of equality between men and women as part of the task of the European Community.

9.2 Article 3(2) requires the Community to eliminate inequalities and to promote equality between men and women.

9.3 Article 141(3) requires the Council to adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

9.4 There are four main Directives on equal treatment of men and women in employment. They concern:

  • (a) equal pay;[20]
  • (b) equal treatment in access to employment, vocational training and promotion and working conditions;[21]
  • (c) occupational social security schemes;[22] and
  • (d) the burden of proof in cases of alleged sexual discrimination.[23]

9.5 In 2002, the Equal Treatment Directive[24] amended the Directive on equality in employment, vocational training and promotion, and working conditions by inserting in it definitions of direct and indirect discrimination and of harassment and sexual harassment. It also inserted requirements for Member States to designate bodies to promote equal treatment of men and women and to take other action to encourage equal treatment in the workplace.

9.6 The Directive on the burden of proof amended the Directives on equal pay and equal treatment in employment, vocational training and promotion, and working conditions by providing that when an aggrieved person establishes before a court that there are facts from which it may be presumed that there has been direct or indirect discrimination, the onus is on the respondent to prove that there has not been a breach of the principle of equal treatment.

The document

9.7 The document comprises:

  • an explanatory memorandum by the Commission;
  • a draft Directive on equal treatment in employment; and
  • the Commission's Extended Impact Assessment of the proposal.

9.8 The draft Directive:

  • consolidates the existing Directives on equal pay; equal treatment in employment, vocational training and promotion, and working conditions; equal treatment in occupational social security schemes; and the burden of proof in cases of sex discrimination;
  • extends to pay and occupational social security schemes the provisions now in Directive 2002/73/EC on the definition of direct and indirect discrimination and harassment and sexual harassment and the requirements for the promotion of equal treatment;
  • applies to equal pay and occupational social security schemes the provisions now in Directive 97/80/EC on the burden of proof in cases of discrimination on grounds of sex; and
  • integrates the relevant case law of the European Court of Justice.

9.9 The Commission considers that there would be major benefits for employees, employers, Member States and others not only from bringing together in one place the legislation now spread between several Directives but also from incorporating the settled case law of the European Court of Justice and from removing ambiguities and inconsistencies in the existing legislation.

The Government's view

9.10 The Minister of State for Industry and the Regions and the Deputy Minister for Women at the Department of Trade and Industry (Jacqui Smith) tells us that:

"As part of the consultation process, we made it clear to the Commission that consolidation and codification were our preferred ways forward rather than using this initiative to introduce significant legislative change. The [draft Directive] goes further than simple consolidation but should stop short of introducing significant policy changes.

"We consider that bringing equal pay jurisprudence into a new single text would not necessarily be straightforward. There have been important differences in interpretation of cases that demonstrate at least some scope for difficulties and disagreement."

9.11 The Minister continues:

"Equal treatment legislation has developed over a period of time and has led to a situation where older Directives are using definitions that have been updated in later Directives, for example the definition of indirect discrimination. In the Equal Pay Directive (75/117) we find a definition of 'pay' that differs from the broader definition in Article 141 of the [EC Treaty] and the present case law of the ECJ … The UK agrees that it is desirable, in so far as is practically possible, to have legislation that is coherent in its definitions. Discrimination law ought to be comparable, in order to avoid unnecessary confusion resulting from different definitions etc. However, the proposal to apply the [Equal Treatment Directive] definitions across the board will require more detailed analysis in order to assess the policy implications."

9.12 The Minister notes that the Commission proposes to incorporate in the draft Directive two important principles that were decided in the case law of the European Court of Justice but did not appear in the Directives which would be repealed. She says:

"The UK supports efforts to improve legal certainty by integrating important elements of case law. However, bringing equal pay jurisprudence into a single new text needs careful consideration as its consequences may not be entirely straightforward."

9.13 The Government has prepared an interim Regulatory Impact Assessment of the proposal. At this stage, the likely financial costs and benefits cannot be quantified because the extent to which the new Directive will, in the event, go beyond consolidation is uncertain. A full Assessment will be completed in due course.

Conclusion

9.14 We do not doubt that there would be benefits from the consolidation of the existing Directives. We can also understand why the Commission considers that it would be desirable to go further, to remove inconsistencies and reflect case law. But the practical effects and costs of going further are not clear. There can also be legitimate differences in the interpretation of case law, so reaching agreement on what might properly be included in the draft Directive is unlikely to be easy. Accordingly, we share the Minister's caution about some aspects of the draft Directive.

9.15 We should be grateful, therefore, if the Minister would keep us informed of progress in the negotiations on the proposal and of the Government's further examination of its implications for the UK. We also ask her to send us the full Regulatory Impact Assessment when it has been completed. Meanwhile, we shall keep the document under scrutiny.


20   Council Directive 75/117/EEC; OJ No. L 45, 19.2.75, p.19. Back

21   Council Directive 76/207/EEC; OJ No. L 39, 14.2.76, p.40. Back

22   Council Directive 86/378/EEC; OJ No. L 225, 12.8.86, p.40. Back

23   Council Directive 96/97/EC; OJ No. L 46, 17.2.97, p.20. Back

24   Directive 2002/73/EC; OJ No. L 269, 5.10.02, p.15. Back


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2004
Prepared 24 June 2004