EU PROPOSALS TO COMBAT DISCRIMINATION
THE CONCEPT OF DISCRIMINATION
78. Article 2 of both Directives describes the "concept
of discrimination". Each Directive covers direct and indirect
discrimination. The definition of direct discriminationthat
one person is, on any of the specified grounds "treated less
favourably than another is, has been or would be treated"is
similar to that found in the RRA. None of the witnesses in this
inquiry took exception to the definition.
79. However, the definition of indirect discrimination
(Article 2(2)(b)) is altogether more difficult. The formulation
in the framework Directive is as follows:
indirect discrimination shall
be taken to occur where an apparently neutral provision, criterion
or practice is liable to adversely affect a person or persons
to whom any of the grounds referred to in Article 1 applies, unless
that provision, criterion or practice is objectively justified
by a legitimate aim and the means of achieving it are appropriate
This is a new definition, which differs significantly
from that found either in current EC legislation (most recently
the Burden of Proof Directive (97/80) of 1997) or in UK legislation.
According to the Burden of Proof Directive, indirect discrimination
where an apparently neutral provision, criterion
or practice disadvantages a substantially higher proportion of
the members of one sex unless that provision, criterion or practice
is appropriate and necessary and can be justified by objective
factors unrelated to sex.
The crucial difference is that the definition now
being proposed does not require a complainant to demonstrate that
a given practice has in fact had a disproportionate adverse effect
on the particular group to which he or she belongs. It is sufficient
that it is "liable" to have such an effect. Furthermore,
it may have this effect not only on a given group but on a single
"person". The impersonality of previous definitions,
where practices have been judged according to their effects on
groups defined by, say, race or sex (albeit an action may be brought
by a single plaintiff belonging to one of these groups), is removed
in the current proposals. In developing this new definition the
Commission have drawn heavily on the judgment of the ECJ in O'Flynn:
[U]nless objectively justified
and proportionate to its aim, a provision of national law must
be regarded as indirectly discriminatory if it is intrinsically
liable to affect migrant workers more than national workers and
if there is a consequent risk that it will place the former at
a particular disadvantage. It is not necessary in this respect
to find that the provision in question does in practice affect
a substantially higher proportion of migrant workers. It is sufficient
that it is liable to have such an effect.
80. Mme Quintin defended the new definition on the
grounds that it removed the need to demonstrate statistically
that indirect discrimination had in fact occurred. This would
make it far easier to use, because the definition in the Burden
of Proof Directive "needs to have a statistical assessment
and, very frankly, the statistical assessment is something which
is extremely complicated to develop for other areas of discrimination".
The new definition would be "a more efficient and wider way
of combating indirect discrimination". A number of witnesses
agreed with Mme Quintin. The CRE described it as "broader,
more workable and more accessible". Liberty welcomed it as
"a good solution". JUSTICE also emphasised that it was
"easier to use. It also ensures that issues of substantive
disadvantage can be challenged at an early stage before they have
had much effect (so there will be few statistics) but when it
is clear that they have the potential to cause real disadvantage."
Robin Allen developed these points in oral evidence, arguing that
"we have got hooked up in the sex laws with the need
to prove actual adverse impact on a class of persons". He
continued, "it ought to be possible
to attack rules,
before they have hurt anybody if they are likely to cause indirect
discrimination in the future" (Q 51, pp 40, 109, Q 270).
81. However, while endorsing the O'Flynn definition,
Mr Allen accepted that the text in the draft Directives misinterpreted
O'Flynn in crucial respects. First he noted that while
O'Flynn included an explicit comparison between groups
("migrant workers" and "national workers"),
the Commission had somehow "lost the comparative element
that needs to be in there". He also took the view that "it
is probably not helpful to have 'a person' in there". JUSTICE
put forward an alternative definition, more closely based on O'Flynn,
in their supplementary written evidence. (QQ 270, 273, p 113).
82. Other witnesses raised similar criticisms or
went further. Kay Carberry of the TUC described the new definition
as "far too loose"it was "a mistake to specify
that if only one person in a group is adversely affected that
is indirect discrimination", and there was "no sense
of comparison". She pointed out that as drafted it could
cover "a practice that adversely affects the majority and
happens to adversely affect the minority as well". This would
be "unfair labour practice", but not discrimination.
The CBI made similar objections, and added the point that "someone
could take a claim forward before they could prove that they had
actually suffered a detriment as a result of a particular policy
or practice, which we think
is wrong in principle".
Professor Hepple was particularly scathing. He argued that the
new definition "completely misunderstands what indirect discrimination
indirect discrimination is practised against a group,
it adversely affects a group, but cannot apply to an individual".
The facts in O'Flynn confirmed this interpretation: the
complainant, a migrant worker, was refused a funeral grant because
such grants were only made available if the funeral took place
in the United Kingdom. Although only one individual claimed to
have been affected, it was abundantly clear that this condition
was "intrinsically liable" to affect "migrant workers
as a class". In other cases the United Kingdom courts had
also shown themselves "willing to rely on well known social
facts" rather than mere statistics.
A similar point was made by John Cridland for the CBI: "the
United Kingdom courts seem to have taken a fairly pragmatic approach
to indirect discrimination cases. Where it is relatively clear,
as a matter of common sense, that a particular group is disproportionately
affected by a policy they have not, in general, bothered with
statistical tests" (QQ 88, 169, 339, 169).
83. While the definition of direct discrimination
in the proposed Directives is unexceptionable, the definition
of indirect discrimination is as it stands unacceptable. There
is no need at this point to diverge from the definition which
already applies to sex discrimination by virtue of the Burden
of Proof Directive. The courts have already shown themselves ready
to interpret purposively the concept of indirect discrimination,
so as to limit the reliance on statistics. A new definition at
this stage can only create confusion and increase the burden of
litigation on the courts and on employers. Furthermore, the Commission
has misunderstood the definition in O'Flynn: indirect discrimination
relies on comparison between definable groups. A definition which
omits such comparison is all but meaningless. We urge the Government
to press for a definition based on that found in the Burden of
84. Article 2(3) in both Directives goes on to state
that harassment "which has the purpose or effect of creating
an intimidating, hostile, offensive or disturbing environment",
shall be deemed to be direct discrimination. The CRE noted that
although United Kingdom legislation does not explicitly cover
harassment, "case law has established that it comes within
the direct discrimination provisions". Therefore Article
2(3) will have little obvious effect in the UK. However, the TUC
pointed out that this interpretation relied on "judicial
extension of the concept of discrimination", and that therefore
the "specific reference in the draft directive is welcome".
The provision was warmly welcomed by Stonewall and by Mencap,
who represent groups frequently the targets of harassment (pp
40, 29, 13, 86).
85. The Committee welcomes the explicit recognition
that harassment constitutes direct discrimination.
86. The framework Directive then adds a separate
Article 2(4), covering disability:
In order to guarantee respect
of the principle of equal treatment for persons with disabilities,
reasonable accommodation shall be provided, where needed, to enable
such persons to have access to, participate in, or advance in
employment, unless this requirement creates an undue hardship.
87. There is a similarity between this provision
and section 6 of the UK's Disability Discrimination Act 1995,
which imposes on employers a duty to "take such steps as
[are] reasonable" to make adjustments to premises or other
arrangements in order to remove a substantial disadvantage which
affects disabled persons in comparison with persons who are not
disabled. Failure to make such adjustment constitutes discrimination
under the Act. However, there are also important differences between
the provisions of the draft Directive and those of the DDA. First,
the Directive applies the concept of reasonable accommodation
as well as that of indirect discrimination, whereas under the
DDA "indirect discrimination", as it is normally defined,
is not deemed to apply to the disabled. Furthermore, no definition
is offered of either "reasonable accommodation" or "undue
hardship"nor are examples given, as in the DDA, of
the sorts of accommodation which might be covered.
88. In one sense Article 2(4) appears to strengthen
the protection offered to disabled persons, and it was welcomed
by most of the groups representing the disabled who gave evidence.
The fullest and most enthusiastic response came from RADAR: "the
inclusion of a concept of indirect discrimination would promote
better practice amongst employers and remove barriers to disabled
people's participation in the workforce in advance rather than
providing individual solutions to individual problems which the
current duty to make reasonable adjustments under the DDA ensures".
Mr Betteridge developed this point in his oral evidence, arguing
that the extension of the concept of indirect discrimination to
the disabled would allow employers "to address issues
at a strategic level before decisions get made". The other
disabled groups, while broadly positive, expressed reservations.
The RNIB and Mencap both wanted a definition of "reasonable
accommodation", and felt that "undue hardship"
was "unnecessary"; the DRC raised the more general point
that "it is not at all clear how the definition of indirect
meshes with the reasonable accommodation
principle" (p 95, Q 265, pp 90, 86).
89. There are in fact three issues here: the meanings
of "reasonable accommodation" and "undue hardship";
the relationship between these two concepts; and the connection
between Article 2(4) and Article 2(2)(b), which defines indirect
90. On the first point, the general questions raised
above about the lack of definitions are relevant. Mme Quintin,
in her oral evidence, gave an example of "undue hardship":
"Should a small shop be totally equipped for computers specifically
for blind people, to take a very extreme example? That is exactly
what this undue hardship means
the employer will have to
prove that it creates undue hardship". This is admittedly
a very clear example, but for that reason it is not very useful
as a guide. The RNIB suggested that "if 'undue hardship'
remains in the Directive, there will need to be a definition or
at the very least a clarification of what it means" (Q 52,
91. The terms "reasonable accommodation"
and "undue hardship" in the framework Directive require
at the very least clarification by a list of examples, along the
lines of the examples of "reasonable adjustment" supplied
in section 6(3) of the DDA, and drawing upon the interpretation
by national courts of the concept of "reasonableness",
where this appears in national legislation. In addition, it should
be made clear that the duty to make an "accommodation"
falls on the employer.
92. A more difficult point concerns the relationship
between the concepts of "reasonable accommodation" and
"undue hardship". At first glance there appears to be
tautology: in the example given above, the duty imposed on the
small shop would clearly be unreasonable, so there seems little
point in adding the concept of "undue hardship" to the
equation. Kay Carberry highlighted the potential consequences
of this duplication: "The way it is worded suggests that
an employer could be acting unreasonably but there would be a
justification for unreasonable behaviour if there was an undue
hardship. It seems to be over-egging the pudding. It seems to
be two defences for the same action" (Q 61). Mme Quintin
put forward the following defence in her supplementary written
In cases where an employer
wishes to justify a difference of treatment on grounds of disability,
he must show that reasonable accommodation short of undue hardship
would not be sufficient to ensure effective performance of the
essential tasks of the job. This is therefore an integral part
of the justification foreseen in Article 2(b), not a second line
of defence (p 26).
93. The Committee cannot accept the Commission's
defence of Article 2(4) of the framework Directive. The way it
is drafted, it is impossible to escape the logical implication
that an "accommodation" could be "reasonable",
at the same time as it involved "undue hardship". Therefore
the introduction of "undue hardship" creates an unnecessary
second line of defence, which should be removed.
94. The final point to be made on Article 2 concerns
the relationship between the prohibition on "indirect discrimination"
and the positive duty (presumably on employers) to provide "reasonable
accommodation". Witnesses were divided on the desirability
of applying both these concepts to disability. While representatives
of disabled groups were broadly welcoming, the CBI argued that
"the concept of reasonable adjustment
has proved a
more effective means of delivering real rights to those with disabilities
than the traditional distinction between direct and indirect discrimination
We see an overlap or duplication which will be unhelpful
in legal terms". Robin Allen described the approach adopted
in the Directive as "slightly muddled". Liberty, on
the other hand, wished to see "reasonable accommodation in
the sphere of religious discrimination", giving as an example
the provision of a "quiet area" for prayer. Professor
Hepple agreed that "indirect discrimination" and "reasonable
accommodation" should cover both disabled and religious groups.
However, he conceded that "it is necessary to reconcile"
the concepts. He recommended the following approach, based on
the Ontario Human Rights Code:
A provision, criterion or
practice shall not be regarded as appropriate and necessary in
the case of indirect discrimination which disadvantages disabled
unless the needs of that group cannot be reasonably
accommodated without causing undue hardship on the person responsible
for accommodating those needs, having regard to factors such as
cost and health and safety requirements.
This formula attempt to tie "reasonable accommodation"
to the requirement that any justification of "indirect discrimination"
must be on grounds which are "appropriate and necessary"
to the pursuit of a "legitimate aim". In other words,
the positive duty to make "reasonable accommodation"
would be brought within the defence to accusations of indirect
discrimination. (QQ 167, 274, 213, p 131).
95. The Committee is not convinced that applying
the concept of "indirect discrimination" to the disabled
will reinforce the protection already afforded by the DDA's imposition
of a duty to provide "reasonable adjustment". This area
requires further research. However, it is clear that the drafting
of the proposed Directive is at present unsatisfactory. The Government
should attempt to ensure that if the two concepts are to be combined,
then the relationship between them is clarified.
96. Article 3 of both proposed Directives describes
their material scope. The framework Directive covers conditions
for access to employment, access to vocational guidance and training,
employment conditions, including pay, and membership of organisations
of workers or employers. The race Directive reproduces these four
categories, and adds four more: social protection and social security;
social advantages; education (which is then qualified); access
to and supply of goods and services. These latter terms, potentially
so broad, are not defined; nor are examples given. However, it
is significant that Article 3 of the race Directive echoes Article
13 of the EC Treaty in including a preliminary statement that
all these rights are conferred only "within the limits of
the powers conferred upon the Community". The qualification
suggests that while the material scope may cover the traditional
concerns of the Community, as well as those new areas introduced
by the Amsterdam Treaty, other important areas falling into the
second and third pillars will not be covered. The framework Directive,
however, contains no such qualification: conditions of employment
and occupation are clearly within the competence of the Community.
97. Representatives of the various groups covered
by the framework Directive expressed satisfaction that protection
in employment and occupation was being conferred, qualified in
some cases with regret that more was not on offer. The Northern
Ireland Equality Commission accepted that "it is pragmatic
to proceed with the Directive being limited to the fields of employment
and occupation in order to enhance the likelihood of approval
by the Council of Ministers". The RNIB looked forward to
a "Directive combating discrimination against disabled people
in all areas within European Union competencies". Stonewall
regarded "the level of protection proposed in relation to
sexual orientation discrimination as about right". However,
they were concerned that the Commission's Explanatory Memorandum
specifies that "this proposal does not affect marital status
and therefore it does not impinge upon entitlements to benefits
for married couples". While conceding that Community law
"does not cover issues of marital and family status",
they stressed that "care
needs to be taken that good
practice in this area is maintained" (pp 7, 91, 13-14).
98. A difficulty arises, however, in the relationship
between Article 3 and equivalent provisions in sex discrimination
legislation. Article 3(c) covers "employment and working
conditions, including dismissals and pay". The TUC noted
that taken in conjunction with the definition of discrimination
("one person is treated less favourably than another is,
has been or would be treated") this provision "appears
to allow the groups mentioned to make hypothetical comparisons
in relation to paywhich goes beyond EU equal pay law".
The same point was made by the Northern Ireland Equality Commission
(pp 30, 7).
99. We have already emphasised the vital importance
of preserving consistency between Community legislation on the
various forms of discrimination. The Government should press the
Commission for a commitment to ensuring consistency between the
equal pay rights of men and women and those of the other groups
included in Article 13.
100. Still more problematic is Article 3 of the race
Directive. Several witnesses asked what areas would be included,
notably under the term "social advantages". Sukhvinder
Stubbs of ENAR argued that the proposed Directive "does not
cover housing, provision of facilities, public bodies, participation
in political, economic and cultural life or any other field".
It is debatable whether some of these areas fall within Community
competencean early draft of the Directive included a reference
to "cultural activities", which was omitted, according
to Mme Quintin, because "the competence of the Community
to intervene was limited to the field of application of Article
151 (i.e. promoting co-operation between the Member States and
with third countries)". However, the CRE and the Northern
Ireland Equality Commission both pointed out that the Commission's
Explanatory Memorandum appears to endorse a European Parliament
resolution of 29 January 1998, which argued that the Directive
should cover "the fields of employment, education, health
care, social security, housing and public and private services".
The CRE went on to ask "why areas such as health care and
housing are not specifically listed in Article 3" (pp 10,
26, 39, 7).
101. Mme Quintin supplied the Committee with the
Commission's understanding of "social advantages" in
her supplementary written evidence:
have been defined by the European Court of Justice in the context
of Council Regulation 1612/68 on freedom of movement for workers
as "all advantages which, whether or not linked to a contract
of employment, are generally granted to national workers because
of their objective status as workers or by virtue of the mere
fact of their residence on the national territory"
The Commission intends the same meaning to apply in the context
of this proposal.
Professor Hepple agreed that in his view the term
had been defined in respect of free movement of workers, and that
the European Court of Justice "could be expected to borrow
interpretations in other relevant fields" (p 26, Q 336).
102. The Committee remains uncertain of the scope
of the draft race Directive. Its uncertainty is in part attributable
to the Commission's Explanatory Memorandum, the intention of which
is unclear. We are not convinced that a definition applied in
the context of the free movement of workers will necessarily apply
in another field, where the only limitation to the scope is that
it must be "within the limits of the powers conferred upon
the Community". The Government should press the Commission
for clarification of the Directive's scope.
103. One further question of material scope arose
in the course of the inquiry. As stated above (paras. 76-77),
the intention is that both Directives should cover third country
nationals. No exemption is provided for the exercise of public
functions, for example by immigration officers. Mme Quintin confirmed
that "the directive does not permit exceptions
the limit of the scope of application laid down in Article 3.
However, the exercise of public functions is covered by the directive
only insofar as it falls within one of the areas mentioned in
that Article" (p 26). This implies that immigration officers
would not be covered insofar as their decisions (for instance,
on admission) fell outside the material scope. Dr Waddington suggested
tentatively that this was an unsatisfactory state of affairs:
"the material scope
could arguably be extended to
cover visas, asylum and immigration policies which now fall under
Articles 61-69 [Title IV] of the EC Treaty. These seem to be areas
where there is a significant risk of race discrimination"
(p 17). At the 1996 IGC the United Kingdom and Ireland negotiated
a Protocol allowing them to opt in to or out of measures under
Title IV. This allows both countries to pursue independent immigration
policies outside the Schengen area. The Government have therefore
taken the view that immigration issues should be specifically
excluded from the race Directive. They pointed out that the Race
Relations (Amendment) Bill contains "a wide exemption in
relation to immigration functions where decisions are made on
the grounds of ethnic or national origin in a number of limited
areas and where some of our policies
might impact particularly
on different racial or ethnic groups". They continued,
Furthermore, we do not believe
that a Directive made under Article 13 should cover matters which
more properly fall within Title IV of the Treaty
of Article 13 to deal with such questions would undermine the
UK's right to choose whether to opt-in to such measures
Other Member States have voiced concerns in relation to this area
and we will be pursuing in negotiations provisions designed to
exclude such matters from the scope of the Directives (p 11).
104. The Committee believes that the public functions
of immigration officers are unlikely to fall within the material
scope of the race Directive. We note the Government's wish to
secure a specific exemption in relation to immigration functions.
However, the right to non-discrimination is a fundamental human
right, and any limitation to this right must be clearly justified.
We note that Title IV of the EC Treaty does not empower the Community
to combat discrimination of any sort in the field of immigration.
The Government should explain their position more fully, and in
particular define the circumstances in which they believe immigration
officers should be entitled to discriminate on grounds of race
or ethnic origin, or on any of the other grounds listed in Article
35 Case 237/94 O'Flynn v Adjudication Officer
 ECR I-2617. Back
Professor Hepple cited Edwards v London Underground (No. 2)
 ICR 494 (see Q 339, p 131). Back
Article 141(1) of the EC Treaty requires that Member States "shall
ensure that the principle of equal pay for male and female workers
for equal work or work of equal value is applied". Back
The definition comes from Case C-57/96 Meints v Minister van
Landbouw  ECR I-6689. Back