Select Committee on European Scrutiny Thirty-Second Report



PE-CONS 3624/02

Draft Directive amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions: Joint text approved by the Conciliation Committee provided for in Article 251(4) of the EC Treaty.

Legal base:Article 141EC; co-decision; qualified majority voting
Deposited in Parliament:28 May 2002
Department:Trade and Industry
Basis of consideration:Minister's letter and EM of 30 May 2002
Previous Committee Report:None; but see (23013) 14492/01: HC 152-xii (2001-02), paragraph 1 (16 January 2002)
To be discussed in Council:13 June 2002
Committee's assessment:Legally and politically important
Committee's decision:Cleared


  17.1  The Minister for Women (Mrs Barbara Roche) wrote to us on 8 May to report the outcome of the conciliation process on this Directive which brings the 1976 Equal Treatment Directive (76/207/EEC) up to date. At that time, she undertook to send us a copy of the final text when it became available.

  17.2  The Secretary of State for Trade and Industry (Ms Patricia Hewitt) has now deposited a copy of the final text, together with a letter and Explanatory Memorandum. At the time of her letter, it appeared that the text would be agreed on 6 June, during the parliamentary recess. The Minister apologises for the timing, caused by the tight deadline set by the conciliation process. In the event, however, it has proved possible to delay agreement until 13 June.

The final text

  17.3  In her helpful Explanatory Memorandum the Minister lists the main ways in which the new Directive amends the 1976 Equal Treatment Directive as follows:

"—  Add to Art 1 a duty on Member States to take equality into account when formulating policy and law in areas covered by the Directive

  • Add to Art 2 (1) definitions of direct discrimination and of indirect discrimination — the indirect discrimination definition being aligned with that in the Article 13 Directive, thus necessitating amendment in due course to the Burden of Proof Directive 97/80/EC.

  • Add to Art 2 (1) definitions of harassment and sexual harassment, confirmation that they are unlawful discrimination and a requirement on Member States to encourage employers to take measures against sexual harassment

  • Substitute Art 2 (2) with wording which retains the ability to establish a genuine occupational qualification for a job holder being of one sex but enforces the principle of proportionality to reflect European Court of Justice case law. Thus it enables a restriction on access to front line posts in certain parts of the Armed Forces on combat effectiveness grounds if that is a proportionate policy.

  • Substitutes a new Art 2 (3) providing that less favourable treatment relating to pregnancy or maternity leave constitutes sex discrimination and confirming rights to return to the same or equivalent work, and to benefit from improvements to terms and conditions; and that similar protection for parents on adoption leave and men on paternity leave in Member States which have such leave

  • Substitute Art 2 (4) with a 'positive action' clause related to article 141(4) of the Treaty.

  • Expands Art 3 (1) and sets out the scope of the Directive to cover employment, self employment and occupation in the public and private sectors and vocational training. It also covers workers' or employers' organisations and reflects the wording used in the Article 13 Directives.[37]

  • Substitute Art 6 to ensure that Member States introduce redress mechanisms to provide for dissuasive compensation or reparation for individuals who experience discrimination, even after the end of the employment relationship, but to allow national time limits.

  • Expand Art 6 to allow organisations (like the Equal Opportunities Commission) which have an interest in national law to support individuals bringing a sex discrimination claim.

  • Expand Art 7 to protect individuals against victimisation by an employer in reaction to a complaint

  • Add a new Art 8a to allow Member States to set up bodies to promote equal treatment, support individuals, carry out research and report on discrimination.

  • Add a new Art 8b to require Member States to work with the social partners to promote equal treatment and improve collective agreements (consistent with national practices).

  • Add a new Art 8c to promote dialogue between Member States and relevant Non-Governmental Organisations.

  • Add a new Art 8d to require Member States to define sanctions for discrimination.

  • Define an implementation date of three years and a general duty to inform the European Commission of compliance."

The Government's view

  17.4  The Minister says:

"The UK Government has always believed it was appropriate to update the Equal Treatment Directive. It is satisfied that the revised Directive will strengthen the principle of equal treatment and its practical implementation, and that the changes will make the law clearer, by incorporating case law. Whilst not imposing significant new burdens on employers, the Directive means that employers must avoid discriminating in recruitment, in training or in working conditions, as now. They should ensure that they have a policy to prevent harassment, which is already unlawful in the UK but will now be formally defined."

  17.5  The Minister tells us that the implementation date will be three years after the Directive is adopted.


  17.6  We are disturbed to learn that the tight timescale referred to in the Minister's letter was caused by the five weeks it took the Jurists-Linguists to issue the final text. We ask the Minister to convey our dissatisfaction with the situation to those responsible.

  17.7  It is encouraging, however, that it has proved possible to delay agreement to the text until we have had this final chance to see it. We also appreciate the way in which both Ministers have been at pains to keep us informed through the later stages of this proposal's long progress, in marked contrast to some failures earlier in the process.

  17.8  We clear the document.

37  43/2000/EC and 78/2000/EC. Back

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