7 Equal treatment of men and women who
are self-employed and assisting spouses
| (30021) 13981/08 COM(08) 636
+ ADDs 1-2
| Draft Directive on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Directive 86/613/EEC
Commission staff working documents: impact assessment and summary of assessment
|
| Legal base | Article 141(3) EC; co-decision; QMV
|
| Document originated | 3 October 2008
|
| Deposited in Parliament | 13 October 2008
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| Departments | Business, Enterprise and Regulatory Reform; Work and Pensions; HM Treasury; and HM Revenue and Customs
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| Basis of consideration | EM of 19 November 2008
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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 | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
7.1 Article 131 of the EC Treaty says that the objectives of the
European Community and the Member States include improved living
and working conditions and "proper social protection"
of workers. Article 137(1) EC requires the Community to support
and complement the activities of Member States on matters affecting
employment and social policy, including social security and equality
between men and women at work. Article 137(2) authorises the Council
to adopt Directives for those purposes. Article 137(4) expressly
states that measures adopted under the Article may not affect
the right of Member States to define the principles of their social
security systems and must not affect the financial equilibrium
of those systems.
7.2 Article 141(3) EC requires the Council to adopt
measures to ensure the application of the principle of equal treatment
of men and women in matters relating to employment and occupation.
7.3 In 1986, the Council adopted a Directive on the
application of equal treatment to self-employed people[26]
and to the spouses of self-employed people who are not partners
in the business or employees of it.[27]
Among other things, the Directive requires Member States to:
- take the action necessary to
ensure the elimination of all national provisions which are contrary
to the principle of equal treatment of men and women in self-employment;
- enable spouses to whom the Directive applies
to join a contributory social security scheme if they wish, so
long as they are not protected by the self-employed workers' social
security scheme;
- consider whether self-employed women and the
wives of self-employed men should be entitled to receive social
security benefits because of pregnancy or motherhood; and
- enable the people to whom the Directive applies
to seek redress if they consider that they have not been treated
fairly because of their gender.[28]
The document
7.4 A year ago, the Council asked the Commission
to consider revising the 1986 Directive. In the course of this
year, the Commission has held extensive consultations with Member
States, European organisations representing management and labour,
the Advisory Committee on Equal Opportunities for Men and Women
and others. Some respondents argued for change; others thought
it unnecessary.
7.5 The Commission has concluded that the 1986 Directive
needs reform and that the best way is to replace it with a new
Directive. Accordingly, it proposes this document. The main provisions
are as follows:
- "life-partners of self-employed
workers, when recognised by national law", are included in
the definition of "assisting spouses";
- sexual harassment of, and discrimination against,
self-employed workers and assisting spouses on grounds of gender
are prohibited;
- Member States may maintain or introduce measures
to prevent, or compensate for, disadvantages linked to gender;
- Member States must enable assisting spouses,
on request, to have the same social protection as self-employed
workers;
- Member States must take the action necessary
to ensure that self-employed women and assisting spouses can obtain,
if they ask for it, the same period of maternity leave and maternity
pay as other workers under the Pregnant Workers Directive;[29]
and
- Member States must ensure that self-employed
workers and assisting spouses can seek compensation or reparation
for loss or damages if they claim that they have not been treated
equally on grounds of gender.
The Government's view
7.6 In their Explanatory Memorandum of 19 November
2008, the Minister of State for Employment Relations at the Department
for Business, Enterprise and Regulatory Reform (Mr Pat McFadden),
the Minister for Disabled People and for the South East at the
Department of Work and Pensions (Jonathan Shaw) and the Financial
Secretary to the Treasury (Mr Stephen Timms) tell us that, while
supporting the aim to improve equality of treatment between men
and women, the Government is concerned about several provisions
of the draft Directive.
7.7 For example, Article 6 would require Member States
to give assisting spouses, on request, social protection which
at least equals the protection available to self-employed workers.
The Ministers say:
"As currently formulated, this provision is
not in line with Member States' competence to organise and finance
their own social security schemes, including who is insured under
national legislation, what benefits are to be granted and under
what conditions".
7.8 The Government is also concerned about the effect
the draft Directive might have on farms and other small rural
businesses.
7.9 Moreover, while the UK currently provides self-employed
women with the Maternity Allowance for 39 weeks to help them take
time-off at the end of pregnancy and after the birth, it does
not provide statutory maternity leave for them "since they
are able to make their own working arrangements".
7.10 Finally, the Ministers tell us that they will
be consulting interested organisations and others about the draft
Directive.
Conclusion
7.11 The Council working group's negotiations
on the draft Directive have only just begun. Moreover, the Government
is concerned about whether one of the proposals is within the
competence of the European Community. So we do not yet have enough
information to reach firm views on these proposals. Accordingly,
we ask the Government for progress reports on the negotiations,
a further and fuller note on the legal base and a summary of the
responses to its consultations with interested parties in the
UK. Meanwhile, we shall keep the document under scrutiny.
26 In 2005, self-employed women in EU industry and
services accounted for 12% of the women working in those businesses,
whereas self-employed men represented 19% of men. About 11% of
self-employed men and women rely on the assistance of their spouses
(other than as partners or employees) to run the family business.
Back
27
Directive 86/613/EEC: OJ No. L 359, 19.12.1986, p. 56-58. Back
28
The legal bases for the 1986 Directive were Articles 100 and 235
of the then EC Treaty, which allowed the Council to adopt Directives
for the approximation of such laws of the Member States as directly
affected the establishment or functioning of the common market
or when action was necessary to attain a Community objective and
the Treaty did not provide a specific power to enable it to be
achieved. Back
29
Directive 92/85/EEC. Back
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