4 Equal treatment of men and women in
employment
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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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| Department | Trade and Industry
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| Basis of consideration | Minister's letter of 2 February 2005 and SEM of 11 February 2005
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| Previous Committee Report | HC 42-xxii (2003-04), para 9 (9 June 2004)
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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 awaited
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Background
4.1 There are four main Directives on the equal treatment of men
and women in employment. They concern:
- equal pay;
- equal treatment in access to employment, vocational
training and promotion and working conditions;
- occupational social security schemes; and
- the burden of proof in cases of alleged sexual
discrimination.
4.2 Each of the Directives has been amended and so
the legislation is dotted around in a way that is not helpful
to employers, employees, Member States and others.
Previous scrutiny
4.3 In June we considered a draft Directive which
proposed:
- the consolidation of the four
main Directives on equal treatment of men and women;
- the extension to pay and occupational social
security schemes of the provisions 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;
- the application to equal pay and occupational
social security schemes of the provisions in Directive 97/80/EC
on the burden of proof in cases of discrimination on grounds
of sex; and
- the integration of some of the relevant case
law of the European Court of Justice.
4.4 The Minister of State for Industry and the Regions
and the Deputy Minister for Women at the Department of Trade and
Industry (Jacqui Smith) told us that consolidation and codification
were the Government's preferred ways forward, rather than using
this initiative to introduce significant legislative change. In
particular, bringing equal pay jurisprudence into a new single
text would not necessarily be straightforward. Moreover, the proposal
to apply across-the-board the definitions currently found in only
some of the Directives would require careful consideration because
its effects on businesses and the law might not be straightforward.
4.5 The Minister also said the likely financial costs
and benefits of the draft Directive could not yet be quantified
because the extent to which the Directive would, in the event,
go beyond consolidation was uncertain. A full Regulatory Impact
Assessment would be completed in due course.
4.6 We concluded that there were likely to be benefits
from the consolidation of the existing Directives. We understood
why the Commission thought that it would be desirable to go further
and, for example, remove inconsistencies and reflect case law.
But the practical effects and costs of going further were not
clear. Accordingly, we shared the Minister's caution about some
aspects of the draft Directive.
4.7 We asked the Minister to keep us informed of
progress in the negotiations and about the Government's further
examination of the implications of the proposal for the UK. We
also asked her to send us the full Regulatory Impact Assessment
when it was ready. Meanwhile, we kept the document under scrutiny.
4.8 In October 2004, the Minister told us some amendments
had been agreed in the Working Group on Social Questions. In the
Government's view, none of them was significant.
4.9 The Minister wrote to us again in December to
tell us that some further minor amendments had been made; again,
the Government could accept them. The Council had agreed a general
approach to the Directive on 7 December.
4.10 We asked the Minister to provide us with a full
Regulatory Impact Assessment of the proposal and a supplementary
Explanatory Memorandum (SEM) about the amendments and the Government's
views on them.
The Minister's letter and SEM of 2 February
4.11 The Minister tells us that the draft Directive
now has to be considered by the Women's Rights Committee of the
European Parliament, with contributions from the Employment and
Legal Committees. She does not expect that the European Parliament
will produce its Opinion on the Directive before April. Because
there is not yet a final text, it is not possible to complete
the full Regulatory Impact Assessment.
4.12 The Minister encloses with her letter the text
of the draft Directive annotated by her Department to show the
amendments on which agreement had been reached before the Council
concluded its general approach on 7 December 2004. She also encloses
a detailed supplementary Explanatory Memorandum (SEM) commenting
on the amendments.
4.13 The supplementary Explanatory Memorandum explains
that UK law requires a person who is bringing a complaint under
the equal pay legislation to identify an actual current or past
worker with whom a valid comparison may be made. The Government's
aim was to secure amendments to the draft Directive to retain
the requirement for an actual comparator in equal pay cases. The
Minister believes that amendments have been agreed that would
be sufficient to achieve that objective.
4.14 The Commission originally proposed to incorporate
in the Directive two principles which had been established by
the case law of the European Court of Justice. In negotiations,
the provision relating to one of these principles has been removed
because of the difficulty of finding a wording on which Member
States could agree. The Government is content with the deletion
and with an amendment to the provision incorporating the other
principle, which relates to public service pensions schemes.
4.15 The other amendments are minor or presentational
and the supplementary Explanatory Memorandum gives reasons why
the Government can accept them.
4.16 The Minister says that the Government has seen
no reason so far to disagree with the Commission's view that the
Directive would result in minimal additional costs for businesses.
But the Government cannot reach a final view on this and complete
the Regulatory Impact Assessment until it is known whether the
European Parliament will propose any amendments and if they will
be accepted.
4.17 The Minister promises us a further Explanatory
Memorandum when there is another draft of the Directive reflecting
the comments of the European Parliament.
Conclusion
4.18 We are grateful to the Minister for the way
in which she has kept us informed during the negotiations on the
draft Directive. We are also grateful for her thorough supplementary
Explanatory Memorandum about the amendments made to the text.
4.19 The codification and simplification of the
existing Directives is clearly desirable. We see no reason to
doubt the Minister's view that the amendments are acceptable.
There are no further questions we need put to the Minister at
this stage.
4.20 We look forward to receiving the Minister's
further Explanatory Memorandum when the outcome of the European
Parliament's consideration of the proposal is known, and to receiving
the Regulatory Impact Assessment. Meanwhile, we shall keep the
document under scrutiny.
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