Select Committee on European Union Ninth Report



78. Article 2 of both Directives describes the "concept of discrimination". Each Directive covers direct and indirect discrimination. The definition of direct discrimination—that 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 and necessary.

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 occurs

    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.[35]

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 is … 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.[36] 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 Proof Directive.

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 discrimination … 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 discrimination.

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, p 90).

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 evidence:

    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 persons … 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 pay—which goes beyond EU equal pay law"[37]. 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 competence—an 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:

    "Social advantages" 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.[38]

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 … within 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 … the use 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 13.

35   Case 237/94 O'Flynn v Adjudication Officer [1996] ECR I-2617. Back

36   Professor Hepple cited Edwards v London Underground (No. 2) [1999] ICR 494 (see Q 339, p 131). Back

37   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

38   The definition comes from Case C-57/96 Meints v Minister van Landbouw [1997] ECR I-6689. Back

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