EU PROPOSALS TO COMBAT DISCRIMINATION
PART 6: SUMMARY OF CONCLUSIONS
THE CASE FOR COMMUNITY ACTION
162. The Committee welcomes Community action to
combat discrimination. Article 13 commits the European Union to
action in this field. We have reservations on the drafting of
the present proposals, and on the balance between encouragement
and enforcement in the package as a whole. These are set out in
detail below. We also emphasise that thought ought always to be
given to the profound and dynamic effects of these measures, given
the wide diversity within the Community (para. 26).
163. The Committee believes that in principle
the proposed measures meet the test of subsidiarity (para. 28).
164. The Committee welcomes the Commission's decision
to implement Article 13 by means of Directives, rather than Regulations.
This allows the Member States limited freedom to adapt the legislation
to their specific cultural circumstances, and is in accord with
the Protocol on subsidiarity and proportionality, which requires
the Community to "leave as much scope for national decision
as possible, consistent with securing the aim of the measure".
However, a balance must be struck between flexibility and legal
certainty. The wish to leave Member States some discretion in
choosing how to implement the broad objectives of the Directives
must be balanced against the need to be specific and unambiguous
enough to make it clear to them what is required. The Committee
believes that the Directives, as drafted, do not achieve this
balance (para. 31).
165. The present proposals will significantly
enhance the rights in many parts of the Community of those groups
mentioned in Article 13. The Committee believes that the proposals
are likely to facilitate free movement, to limit unfair competition,
and to enhance the success of the single market. They may prove
particularly significant in protecting the rights of British citizens
from ethnic minorities living or working in other Member States
166. The Committee supports the Commission's realism
in setting minimum common standards. These will establish the
principle of legislation in those Member States where there is
at present no statutory protection, while allowing other Member
States to go much further. However, we have grave reservations
concerning the way these standards have been applied across the
board, without adapting them sufficiently to the various grounds
of discrimination. These reservations are set out in detail below
167. While these proposals are addressed to the
existing Member States, they could also have a profound impact
on the candidate countries, and on prospects for enlargement.
The Committee welcomes the involvement of candidate countries
in the Action Programme, and believes that this element of the
programme should be given a high priority, in order to help ensure
that candidate countries are prepared to fulfil the obligations
of full membership (para. 37).
THE STRUCTURE OF THE COMMISSION'S PROPOSALS
168. Article 13 of the EC Treaty empowers the
Community to combat specific forms of discrimination, and the
Committee believes that any proposed legislation should reflect
both the breadth of Article 13 and the specific ways discrimination
manifests itself in the different areas. If legislation is to
provide the victims of discrimination with effective protection
and remedies, it must respond to the many forms discrimination
takes, and to the differing characteristics of the groups who
are its victims. The sectoral approach adopted in the United Kingdom
has considerable advantages, and the Committee would like to see
some of the lessons of the United Kingdom's approach reflected
in the current proposals. The present framework Directive falls
between two stools. It does not follow the sectoral approach.
Nor can it truly be described as a "framework" or "umbrella"
Directive, as it excludes discrimination on the grounds of sex
and, if the race Directive is adopted first, on grounds of racial
or ethnic origin. There are good reasons for this exclusion. However,
the existence of specific measures on sex and (potentially) on
race makes it all the more important that any "framework"
legislation on the other grounds should not be too generalisedto
be effective its provisions must take account of the differences
between the specific grounds of discrimination (para. 45).
169. There is a particularly urgent need to confront
racial prejudice and discrimination. We therefore welcome the
emphasis laid in the current proposals on discrimination on grounds
of race or ethnic origin. The proposed race Directive would contribute
to the fight against racism and xenophobia throughout Europe.
The Council is at present more likely to accept far-reaching legislation
in the area of racial discrimination than in the other areas covered
by Article 13. The Commission's approach is therefore in this
respect appropriate and realistic. However, we emphasise that
it is essential to ensure consistency between the various instruments
on discrimination, and that any overlap or duplication between
the race and framework Directives must be clearly resolved (para.
170. Article 13 signifies a clear commitment by
the Member States to combating discrimination on all the specified
grounds. The Committee welcomes the decision to act on this commitment
by means of a broad framework Directive. Moreover, there is considerable
force in the pragmatic argument that some form of comprehensive
framework legislation may be all that is possible at the moment
for some of the grounds included in Article 13. But there is a
danger that if a framework Directive is rushed through which fails
to take account of the differences between the various types of
discrimination then Member States and the Community will rest
on their laurels, assuming that enough has been done once it is
in place. Any framework Directive should more clearly differentiate
between the various forms of discrimination than does the current
proposal. A framework Directive comprising several sections, each
given over to the protection to be afforded to a specific group,
and giving equal weight to each of these groups, could incorporate
a common definition of material scope, as well as of direct and
indirect discrimination. However, the different ways in which
these and other concepts (such as "reasonable accommodation"
and "genuine occupational qualification") would apply
to the different grounds of discrimination could be specified
in each section. The current proposed framework Directive would
bring benefits, but we believe that as it is drafted, and with
its present structure, it would fall short of fully protecting
the principle of equal treatment on all the various grounds. It
is essential that whatever legislation is adopted should be effective
and workable, and we hope that every effort will be made to achieve
this goal. It is better to take more time to ensure well-prepared
measures than to rush through the framework Directive in its current
form (para. 47).
CONSISTENCY AND THE RELATIONSHIP OF THE DRAFT
DIRECTIVES TO EXISTING LEGISLATION ON SEX DISCRIMINATION
171. The race Directive, in contrast to the framework
Directive, explicitly goes beyond the sphere of "employment
and occupation", to include areas such as "access to
and supply of goods and services". Article 141 of the EC
Treaty, which covers measures on equal treatment between the sexes
only in "employment and occupation", does not provide
a sufficient legal basis for bringing the scope of sex equality
legislation into line with the race Directive. The United Kingdom's
experience shows the benefits of keeping sex and race discrimination
legislation in step. We therefore urge the Government to explore
with the Commission the possibility of bringing forward proposals
on sex discrimination under Article 13, with a view to achieving
as close an approximation as possible of the scope of legislation
on sex and race discrimination (para. 50).
172. Inconsistencies between the individual provisions
of the various anti-discrimination instruments are likely to create
confusion and uncertainty for employers and for victims of discrimination.
In turn this is likely to increase the workload of the courts.
Legal standards must be clear, consistent and easily intelligible.
Consistency (for example, in the definitions of victimisation)
is entirely compatible with the existence of sectoral legislation
(such as the Equal Treatment Directive, or the proposed race Directive).
The Government should therefore urge the Commission to ensure
consistency between provisions in the various instruments offering
protection against discrimination (para. 52).
THE PROPOSED ACTION PROGRAMME
173. The Committee welcomes the proposal for an
Action Programme. The exchange of best practice and the development
of reliable statistics are vital to combating discrimination across
the EU. We wish to emphasise the importance of the participation
of the candidate countries. We urge the Government to ensure that
rigorous evaluation methods are in place so that the resources
available through the Action Programme can be targeted and used
to best effect (para. 58).
THE TEXTS OF THE DRAFT DIRECTIVES
174. The Commission's view that definitions of
key concepts can simply be "left to Member States" is
an over-simplification. EU-wide definitions will evolve as cases
reach the Court of Justice. This will be a long process, and there
will inevitably be a period of uncertainty as cases are taken
through the courts. Defining key concepts (notably "disability")
might enhance legal certainty. The Commission's proposal to carry
out a comparative analysis of definitions of disability in the
Member States is welcome, if somewhat belated. But there is also
some advantage in allowing enough flexibility to take account
of societal changes and evolving attitudes. Moreover, the Committee
recognises that securing the unanimous agreement of the Member
States on definitions of at least some of the grounds of discrimination
in Article 13 might prove politically and practically difficult.
The Committee therefore suggests that the Government should explore
with the Commission the possibility of including within the framework
Directive examples illustrating (non-exhaustively) the categories
of person who are intended to be protected. So, for example, people
with learning disabilities or those above a certain minimum age
could be stated as being within the scope of the Directive (para.
THE PRINCIPLE OF EQUAL TREATMENT
175. Article 13 expresses the unanimous desire
of the Member States to combat discrimination on all the grounds
listed. While the Committee has many reservations concerning the
Commission's current proposals, we believe that the law should
guarantee the "principle of equal treatment" on all
these grounds, including sexual orientation. Our concerns about
the inclusion of "racial or ethnic origin" in both instruments,
and about the exclusion of sex, have been outlined above (para.
176. The Committee accepts that it is often difficult
to distinguish between racial and religious discrimination. There
are also anomalies in the interpretation of the Race Relations
Act. However, we note that the Government has commissioned research
into the effects of religious discrimination and the extent to
which it overlaps with racial discrimination, in mainland Britain.
It would be inappropriate to prejudge the conclusions of this
research by recommending the inclusion of "religion or belief"
in the race Directive. We are also concerned at the vagueness
of the phrase "religion or belief", and believe that
if protection on these grounds is to be extended beyond the employment
field, a clearer definition, or a list of examples, will be required
177. The Committee understands that the framework
Directive, like the race Directive, will give protection to third
country nationals. For the sake of consistency and legal certainty
this should be made explicit in the Preamble (para. 77).
THE CONCEPT OF DISCRIMINATION
178. 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
Proof Directive (para. 83).
179. The Committee welcomes the explicit recognition
that harassment constitutes direct discrimination (para. 85).
180. 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 Disability Discrimination Act, 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 (para. 91).
181. 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 (para. 93).
182. 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 (para. 95).
183. 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 (para. 99).
184. 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". We urge the Government to press the Commission
for clarification of the Directive's scope (para. 102).
185. The public functions of immigration officers
are in our view 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
13 (para. 104).
GENUINE OCCUPATIONAL QUALIFICATION
186. The suggestion in Article 4 of the proposed
Directives that differences of treatment where there is a genuine
occupational qualification "shall not constitute discrimination"
is puzzling: in reality it would seem that they do indeed constitute
discrimination, albeit they are permissible (para. 106).
187. The Committee agrees with the Government's
view that as the framework Directive is drafted the relationship
between "genuine occupational qualifications" and "reasonable
accommodation" for the disabled is unclear and could be counter-productive.
The Commission needs to think further about how "genuine
occupational qualifications" will impact on the disabled,
including those with learning disabilities (para. 108).
188. Article 4(1) of the framework Directive provides
that where there is a "genuine occupational qualification",
determined by reference to the "particular occupational activities",
a difference of treatment shall not constitute discrimination.
The Committee believes (subject to the reservation set out below)
that this Article should provide, as it stands, a sufficient safeguard
for religious organisations. The narrow and convoluted wording
of Article 4(2), as drafted, would seem to add nothing to this
safeguard. In fact we believe that it is likely to limit the ability
of religious organisations to apply the "genuine occupational
qualification" principle. We doubt that this can have been
the Commission's intention. If Article 4(2) is to be retained,
its meaning and scope should be clarified (para. 111).
189. There might still be problems in subjecting
the employment practices of religious or denominational schools
to the "genuine occupational qualification" provision.
We note that school teachers in Northern Ireland are exempted
from Fair Employment legislation. Furthermore, section 60 of the
School Standards and Framework Act 1998 provides that voluntary
schools in England and Wales which have a "religious character"
are permitted to give preference in employment, remuneration or
promotion to teachers "whose religious opinions are in accordance
with the tenets" of that religion. Such schools may also
terminate the employment of teachers whose conduct is "incompatible
with the precepts" of that religion. This is an extremely
sensitive issue, which needs to be examined in much more detail,
and the Committee has not received enough evidence on it to reach
a firm conclusion. We urge the Government to explore with the
Commission ways to provide effective protection (possibly by means
of an express exemption from the provisions of the Directive)
for the rights of religious organisations, particularly schools
190. It is inappropriate for "justifications"
for direct discrimination on grounds of age to be put forward:
the Government should press the Commission to make it clear that
these are specific exceptions to the principle of equal treatment,
not justifications for unequal treatment (para. 114).
191. Article 5 of the framework Directive entirely
fails to achieve the Commission's goals of providing clear limits
and certainty in the field of age discrimination. As drafted,
there is a strong possibility that it would do more harm than
good, effectively legalising age discrimination throughout the
Community. There appears to be no coherent pattern in the list
of justifications. Equally, it is unclear what ages will be covered,
and what comparisons will apply in judging indirect discrimination.
The draft framework Directive will give no protection to the growing
proportion of the population who are over the age of retirement.
It appears that the determination to tackle age discrimination
is not uniformly strong. It is therefore vital that the Action
Programme and similar measures should place particular emphasis
on building up awareness of the issue. At the same time the Government
should seek to ensure that any exceptions to the principle of
equal treatment irrespective of age are clearly defined and justified
192. The Committee endorses the Commission's permissive
approach to positive action: given the differences between Member
States, it is proper that positive action should be permitted,
not required (para. 121).
193. The issues surrounding positive action are
among the most difficult and controversial in the discrimination
field. Current European case-law is far from clear on how far
positive action can lawfully go. The proposed Directives, by failing
to give any guidance, do not help to clarify the situation. The
Committee's understanding is that quotas are currently unlawful.
We believe that as a general rule they should remain so, although
there may be circumstances in which some degree of flexibility
is required (para. 125).
194. Given the different traditions and experiences
of positive action among the Member States, we believe that it
would be helpful for the Directives to include illustrative examples
of the forms of action, not amounting to positive or reverse discrimination,
which would help to combat discrimination (para. 126).
195. The Committee agrees with the Government
that positive action can actively promote fairness as well as
merely compensating for disadvantage. We regret that at present
the Directives seem to be reactive rather than proactive. It is
particularly regrettable that the explanatory memorandum to the
framework Directive describes positive action measures as "a
derogation from the principle of equality", which should
be "interpreted strictly". On the surface this appears
to imply that "positive action" and "positive discrimination"
are synonymous. It is unlikely to encourage positive action measures
such as the targeting of training or job advertisements at under-represented
groups, which are designed to establish a "level playing
field", not distort it. While positive action should not
be required of Member States, it should be encouraged, and we
urge the Government to press for the Directives to be amended
accordingly (para. 128).
DEFENCE OF RIGHTS
196. The Commission's summary of what is envisaged
by the reference to "judicial and/or administrative"
procedures is more accurately described by the parallel Article
in the Equal Treatment Directive. It is unwise to invite confusion
by diverging from the existing provision (para. 132).
197. The drafting of Articles 7(1) of the race
Directive and 8(1) of the framework Directive is unsatisfactory
as it stands. The Articles should be amended in order to clarify
whether or not they are intended to cover discrimination after
the termination of employment, for example in the provision of
references (para. 134).
198. The Committee welcomes the introduction of
representative actions: by permitting organisations to take cases
on behalf of individuals the strain on victims will be eased,
the ability to bring test cases enhanced, and the burden on the
public purse potentially reduced. The Directives, however, should
make it more explicit that representative actions will be permitted
on behalf of groups of named individuals, while prohibiting "class
actions". The same protection should be extended to victims
in sex discrimination legislation (para. 136).
BURDEN OF PROOF
199. The Committee supports attempts to bring
consistency to anti-discrimination legislation. We therefore welcome
the proposed reversal of the burden of proof, which will bring
legislation on all the grounds in Article 13 into line with sex
discrimination legislation (para. 139).
200. The provisions on victimisation differ for
no apparent reasonthey are prime examples of what witnesses
have called "fuzzy law". The Committee's view is that
any reference to "motivation" is inconsistent with the
concept of discrimination as a tort, as well as being likely to
make it harder to prove victimisation. The reference to motivation
in Article 9 of the race Directive should be removed and consistency
between the provisions ensured (para. 142).
DISSEMINATION OF INFORMATION AND SOCIAL DIALOGUE
201. It is essential that new legislative requirements
be adequately publicised in workplaces and elsewhere. The Government
already freely disseminates information on new initiatives. Furthermore,
social dialogue can make a vital contribution to developing equal
opportunities within businesses. However, the Committee believes
that such arrangements are best left to Member States: it is inconsistent
with the principle of subsidiarity that the Directives, as well
as setting out legislative requirements, should prescribe to Member
States methods of publicising that legislation. Such methods should
be encouraged as best practice through the Action Programme, where
it may also be appropriate to allude to the need for information
to be readily accessible to disabled people (para. 146).
202. Only the race Directive provides for the
creation of an independent body or bodies. Mme Quintin's explanation
of the reasons for not including an Article on independent bodies
in the framework Directive applies equally to the race Directive.
There seems to be no convincing justification for this inconsistency.
The United Kingdom's Equality Commissions offer invaluable help
to women and members of racial minorities, and we expect the DRC
to provide an equally useful service to disabled persons. We do
not wish to express a view on the virtues of a single body to
promote equality on all the grounds in Article 13 rather than
several bodies: this is a matter best left to Member States. However,
we urge the Government to press for the inclusion of a reference
to an independent body or bodies in the framework Directive (para.
203. The Committee welcomes the wide powers granted
to the independent body or bodies set up under Article 12 of the
race Directive. However, we also believe that the Directive should
not be too prescriptive, but should leave the precise functioning
of these bodies to Member States. We welcome Mme Quintin's assurance
that they would not be obliged to pursue complaints on behalf
of individuals, but suggest that this discretion could be more
clearly spelt out in the text of the Directive (para. 152).
OMMISSIONS FROM THE DRAFT DIRECTIVES
204. Effective anti-discrimination legislation
must do more than provide individual remedies for the victims
of discriminationit must actively encourage public authorities
and employers to promote equality. We welcome the Government's
stated intention to bring forward proposals on requiring public
authorities to promote equality. We recognise that the inclusion
in the draft Directives of provisions on monitoring and the setting
of targets for employers might present serious, possibly insuperable,
obstacles to securing the agreement of the Member States. However,
we believe that the Directives could give greater encouragement
to Member States and employers to introduce positive equality
policies (para. 160).
205. Monitoring should not be seen simply as a
device for assessing the effectiveness of legislation. It should
be seen as a positive and proactive requirement for employers
to examine their own practices and policies with a view to creating
equal opportunities for all. It is crucial that employers should
monitor themselves, rather than that monitoring should be imposed
on businesses from outside. We believe therefore that the benefits
and costs of monitoring and other initiatives to promote equality
should feature prominently in the Action Programme. Experiences
within Member States and in other jurisdictions should be shared
and evaluated with a view to considering whether there may be
scope for EU-wide action in the future (para. 161).