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
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Legal base | Article 141(3) EC; co-decision; QMV
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Document originated | 21 April 2004
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Deposited in Parliament | 28 April 2004
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Department | Trade and Industry
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Basis of consideration | EM of 13 May 2004
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Previous Committee Report | None
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To be discussed in Council | No date set
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Committee's assessment | Politically important
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Committee's decision | Not cleared; further information requested
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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
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