Select Committee on European Union Ninth Report


EU PROPOSALS TO COMBAT DISCRIMINATION

GENUINE OCCUPATIONAL QUALIFICATION

105. Article 4 of both Directives allows for differences of treatment based on the relevant discriminatory grounds where the latter constitute a "genuine occupational qualification". The wording of the Article would seem to be an amalgamation of Article 2(2) of the Equal Treatment Directive and section 5 of the RRA. There is a peculiarity, however, in that Article 4 states that differences of treatment on the grounds of a genuine occupational qualification "shall not constitute discrimination".

106. 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.

107. The RNIB pointed to a possible inconsistency between Article 4 and Article 2: "Genuine Occupational Qualifications may be applicable with regard to race and gender, but cause huge problems when applied to such a disparate area as disability". Mencap agreed: "Occupational qualifications can mean that there is a convention about the abilities needed to do the job. Mencap would prefer the UK approach which challenges the convention by requiring reasonable adjustments to be made". On the other hand, RADAR supported the application of Article 4 to the disabled. Robin Allen argued that the inclusion of "genuine occupational qualifications" simply contributed to the "slightly muddled approach to disability discrimination". The Government EM made the point that the DDA "would not allow an occupational qualification to be cited as a reason for refusing to employ a disabled person without consideration first of whether reasonable adjustments could be made. This link does not seem to exist in the current proposal" (pp 90, 86, 95 Q 274).

108. 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 also needs to think further about how "genuine occupational qualifications" will impact on the disabled, including those with learning disabilities.

109. Article 4 of the framework Directive then includes an additional provision (Article 4(2)) which provides that for organisations which

    pursue directly and essentially the aim of ideological guidance in the field of religion or belief with respect to education, information and the expression of opinions, and for the particular occupational activities within these organisations which are directly and essentially related to this aim, a difference of treatment based on a relevant characteristic related to religion or belief shall not constitute discrimination, where, by reason of the nature of these activities, the characteristic constitutes a genuine occupational qualification.

The wording of this provision is particularly cumbersome: Mme Quintin herself described it as "an awful provision which is impossible to read … because it reflects the complexity of these issues". She confirmed that as a derogation from the principle of equal treatment it must be read narrowly: "It has to relate to the specific occupation". Thus a Roman Catholic school would be entitled to appoint only Catholics to teach religious education; the entitlement would certainly not extend to the cleaners, and probably not to the teachers of other subjects. Stonewall confirmed that in their view the test might be used to bar homosexuals from such employment: they supported the proviso as long as it was narrowly read. Precisely how narrowly it will be read is unclear, and Dr Bowling suggested that it "could be interpreted as exempting all teaching jobs in religious schools from the prohibition of discrimination based on religion or belief and sexual orientation". More generally, it is unclear how much Article 4(2) adds to Article 4(1). In Dr Waddington's view, Article 4(2) "seems unnecessary in light of the broadly worded provision in Article 4(1)" (Q 40, pp 13, 3, 18).

110. Sir Robert Cooper drew the Committee's attention to the way similar issues had been handled in Northern Ireland. Teachers in primary and secondary schools were specifically exempted from the 1989 Fair Employment Act because it was feared that while Catholic schools would be entitled to use the genuine occupational qualification test to justify employing only Catholic teachers, Protestant or state schools would not meet the requirements of the test: "If you had a religion test for teachers in Catholic schools but all teachers had the right to equal opportunities and no discrimination in state schools, then the effect of that would be that Catholic teachers would be at a very considerable advantage". In other words, the application of fair employment legislation to the teaching profession would in fact undermine equality of opportunity. However, no broader exemption was granted to the churches—organisations such as orphanages, as well as schools where non-teaching staff were concerned, were covered by the Act: "if the job is one which involves a representational role or proselytising then religion could be a genuine occupational qualification, but … if it was a janitor then clearly it could not be". Sir Robert told the Committee that this provision had not led to "any cases at all. It has not given rise to any significant difficulty" (QQ 300-01).

111. 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.

112. 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.[39] 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.

AGE DISCRIMINATION

113. Article 5 of the framework Directive has no equivalent in the race Directive. It gives six "justifications" for differences of treatment on grounds of age. Like Article 4, this Article claims that if so justified such "differences of treatment … shall not constitute direct discrimination". Kay Carberry of the TUC drew attention to the drafting point that "it is not clear whether all the sub-paragraphs are justifications for discriminatory treatment or whether they are exceptions" (Q 83).

114. 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.

115. The list of "justifications" is non-exhaustive-the last two justifications (including the very broad Article 5(f), which covers "the establishment of age limits which are appropriate and necessary to pursue legitimate labour market objectives") were added at a late stage, after a first draft of the Directive had appeared on the Commission website. Mme Quintin argued that Article 5 was "designed to fix clear limits, to insist on the principles of objective justification, necessity and proportionality, and to give some indicative examples in order to clarify the type of exception which is envisaged, and provide certainty concerning the most widespread and clearly justified examples." However, several witnesses argued that the list of justifications was so wide as to offer little or no protection to the victims of age discrimination. Kay Carberry said, "I just hope that this will not make a nonsense of the entire principle of protection against age discrimination". The views of EurolinkAge have already been quoted (see above, para. 42). They stated that Article 5 would "not produce any clear benefits for older workers in Europe who currently suffer from age discriminatory practices". They felt that Articles 5 (d) and (f) in particular might "have the effect of legalising age discrimination in Europe". They confirmed that in order to give any form of protection to those over the statutory retirement age the Directive would have to cover fields such as "access to health and other services; education; culture; access to and participation in the information society; free movement/rights of residence; social protection". EurolinkAge also suggested that Articles 5(e) and (f) had been included at such a late stage "to accommodate one Member State, Germany", and argued that "the Commission has bowed too soon to these political problems, which is indicative of the Commission's current relationship with the Council". Nevertheless, they did argue that age should be included in any framework Directive subject to "proper adaptation" (p 27, Q 84, pp 83-84).

116. Dominic Johnson of the CBI felt that it was inappropriate at this stage to legislate on age discrimination. He argued that there was as yet no consensus in society on when it is fair or unfair to discriminate on grounds of age, pointing out that "age is something from which we all suffer, young or old", and that legislation could provoke a "huge swathe of litigation". The Directive included no guidance as to appropriate comparators: "is the relative comparator group aged between 25 and 30 or between 20 and 35? You can imagine that applicants would move the goalposts to fit their own case". The CBI argued that the Government's code of practice on age discrimination should be allowed "a period to bed down", and that in the meantime the emphasis should be on good practice and the Action Programme. Gay Moon of JUSTICE, on the other hand, claimed that the Government's code of practice has "had virtually no effect", and that "legal sanctions" were needed. The Government, while supporting their existing code of practice, welcomed the inclusion of age in the proposed Directive (QQ 172, 170, 282, p 11)

117. EurolinkAge represent the interests of the elderly. However, Professor Hepple took the CBI's point (that age, unlike, say, disability, is common to everyone) a stage further, pointing out that "as presently drafted [Article 5] would cover discrimination against persons of all ages". The "justifications" contained in the Article were "too prescriptive in one sense, and in the other sense they do not cover all the areas where one might want to make exceptions". It was therefore conceivable that "you could have discrimination … against a five year old". However, he also argued that given the age structure of the population across Europe some form of legislation was "virtually an economic necessity" (Q 335).

118. 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.

POSITIVE ACTION

119. Article 5 of the race Directive and Article 6 of the framework Directive permit Member States to take positive action—"to maintain or adopt measures intended to prevent or compensate for disadvantages concerning persons to whom any of the discriminatory grounds … refer". The Articles do not compel Member States to adopt such measures; nor do they define "positive action". Similar provisions already exist with regard to sex discrimination in Article 2(4) of the Equal Treatment Directive and in Article 141(4) of the EC Treaty. However, there are some differences: thus the ETD refers to "removing existing inequalities" and the EC Treaty to "adopting measures providing for specific advantages".

120. Most witnesses agreed that the Commission was right in adopting a permissive approach rather than requiring Member States to introduce positive action. Gay Moon of JUSTICE described this approach as "appropriate at this stage because of the variety of different legal systems throughout Europe". Professor Hepple agreed: "this is an area where different countries will want to take different lines". RADAR, on the other hand, argued in favour of a measure which would "require member states to implement affirmative action policies to enhance the employment opportunities of people with disabilities rather than allow them to take such steps" (QQ 281, 337, p 94).

121. 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.

122. However, it was clear that several witnesses were unsure of the exact meaning of "positive action"—and in particular whether it encompasses positive, or reverse, discrimination, which might in some cases involve the imposition of quotas. Mme Quintin referred the Committee to the case-law of the European Court,[40] which allowed Member States considerable freedom in interpreting positive action. She argued that "positive discrimination" would be permitted, but not quotas: "It is up to Member States … to define [positive action] as they want, as long as it is not an automatic quota contrary to the principle of equality. Yes, it can allow some kind of positive discrimination if Member States so wish". This leaves open the question of what, short of automatic quotas, does in fact constitute "positive discrimination". Thus Alan Lakin of the EOC, asked for more clarification of what was permitted by the Article: "it would be very helpful … if the Article made clear to what extent positive action actually amounts to positive discrimination". His understanding (differing from Mme Quintin's) was that "positive discrimination largely appears to be in contravention of European Union law" (QQ 50, 149).

123. Bob Purkiss of the CRE helpfully gave the Committee an example of what he saw as constructive "positive action": the provision by Shell of targeted training to help members of minority ethnic groups to obtain HGV licences, and thus to qualify for consideration for jobs within the company. Targeted training of this sort need not constitute positive or reverse "discrimination". Professor Hepple summed up the forms of positive action which are permitted by the RRA: "encouraging applicants from areas and groups who have not normally applied, and secondly, special training". Both Mr Purkiss and Professor Hepple, while advancing the merits of positive action, rejected positive or reverse discrimination. Mr Purkiss said that "we would not accept … reverse discrimination", and Professor Hepple also saw it as "counter-productive". Other witnesses focused on quotas: Kay Carberry of the TUC said "we need to make sure we do not get anywhere near … quotas", while JUSTICE said that they "did not want to advocate the use of automatic quotas" (QQ 131-32, 337-38, 89, 281).

124. The RNIB, on the other hand, argued that disability quotas "are still extremely important to many disabled people in other EU member states", a point also made by RADAR. Moreover, Sir Robert Cooper drew the Committee's attention to the politically very sensitive issues at stake in Northern Ireland: "The Patten Commission recommendations are that the police should be an exceptional circumstance of 50-50 recruitment. There is an issue to be raised there as to whether in fact the European Directive … would permit that" (p 94, Q 323).

125. 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.

126. 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.

127. JUSTICE drew attention to the difference between the wording of the positive action provisions in the Directives and that found in Article 141(4) of the EC Treaty, which allows Member States to adopt "measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers". JUSTICE suggested that "this does not seem to be significant". However, Adrian Marshall Williams of Liberty noted that the wording in the proposed Directives (which omits any reference to "specific advantage") seems "to constrain positive action within certain limits in that that has to be positive action clearly intended to remedy a disadvantage rather than, for example, a general promotion of a disadvantaged group". Professor Hepple also noted that the race Directive, "although it allows positive action, it really does it as an exception to a rule about discrimination against individuals. What is missing here is any idea of developing positive duty on public authorities … and so on".[41] The Government asserted that "positive action is about fair competition—not removing competition" (p 110, QQ 211, 345, p 10).

128. 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.

MINIMUM REQUIREMENTS

129. Article 6 of the race Directive and Article 7 of the framework Directive embody a "non-regression" clause, ensuring that Member States shall not, in implementing the Directives, reduce already existing levels of protection. They also allow Member States to adopt measures "more favourable to the protection of the principle of equal treatment than those laid down in this Directive". This is a standard requirement, described by JUSTICE as "unobjectionable" (p 110). None of those who gave evidence disagreed with this verdict.

DEFENCE OF RIGHTS

130. Article 7(1) of the race Directive and Article 8(1) of the framework Directive are on the defence of rights and the enforcement of obligations. Member States are to "ensure that judicial and/or administrative procedures" are available to those who consider themselves to have been discriminated against.

131. These provisions differ from the parallel provision in the Equal Treatment Directive, which specifies exclusively "judicial process after possible recourse to other competent authorities". The reason for this difference is unclear. JUSTICE speculated that the phrasing might "reflect the bifurcation in the Civil codes, in for instance France, between matters that go before the courts and matters that go before the administrative tribunals". However, JUSTICE took the view that it would be preferable to follow the wording in the Equal Treatment Directive, requiring judicial process. Mme Quintin confirmed that the purpose was to take account of the fact "that Member States provide for different procedures", while ensuring that a victim would have an "adequate remedy". Adam Tyson, also speaking for the Commission, stated that in some Member States independent bodies "play a quasi judicial role … They are administrative decisions, they are not judicial, but they would be upheld by the courts if an individual was to appeal to the courts" (pp 110, 25, Q 51).

132. 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.

133. A further point concerns the extent to which the Directives would enable individuals to enforce obligations after the termination of employment. The ECJ found in Coote[42] that Article 6 of the Equal Treatment Directive (comparable to Article 8(1) of the framework Directive) required Member States "to ensure judicial protection for workers whose employer, after the employment relationship has ended, refuses to provide references". In other words, workers would be protected from continuing acts of discrimination even after the termination of employment. Liberty pointed out that there was an ambiguity in the drafting of the proposed Directives, which did not "happily encapsulate the doctrine in Coote". The CRE were uncertain whether or not the Articles were intended to "reflect the recent European Court of Justice decision in Coote v Granada", and concluded that "on the face of it, however, it appears merely to enable an ex-employee to complain about her or his treatment by an employer after termination"—in other words, to complain about treatment that occurred before termination, rather than continuing discrimination such as the refusal of references (Q 205, p 41).

134. 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.

135. Articles 7(2) and 8(2) go on to provide that "associations, organisations or other legal entities [shall] be entitled to pursue, on behalf of the complainant … any judicial and/or administrative procedure". This allows "representative actions" to be taken up on behalf of individuals by independent organisations such as Trade Unions. The United Kingdom's existing Commissions (the EOC, CRE and DRC) would be included as "legal entities"—though the CRE's role is also touched on in Article 12 of the race Directive. Both the TUC and Liberty welcomed the prospect of being granted such a role: Kay Carberry of the TUC thought it would be useful, "in circumstances when it was a difficult case and an individual might find it too stressful, or when it was a case that tested a particular point in law". Liberty also made the point that "organisations are often best placed to bring well-informed and well-targeted claims that can resolve issues, making the most effective use of resources." However, some witnesses saw drawbacks in the provision as drafted. The EOC argued that "it is important that the scope for representative actions is clarified and extended to sex". Ms Carberry regarded the provision as "welcome although limited, unless it is extended to the right to take a case on behalf of a group of workers because we have found … that it is quite frequently the case that the same kind of discriminatory behaviour affects more than one person … We think that it would be helpful if bodies like the TUC could take cases on behalf of groups". The EOC agreed, pointing to the benefits to individuals and to the public purse of bringing "one set of proceedings … as opposed to a succession of proceedings which are addressing the same issue". The Government, on the other hand, interpreted the provision as allowing bodies to "take action on behalf of an individual or a group of individuals". However, these individuals would still be named—"it could not be nameless". The CBI also argued that although "group actions", taken by or on behalf of a number of individuals, should be allowed, "class actions", where a class of unnamed individuals brought a case, did not have "an appropriate place to play in the system of legal redress". Professor Hepple also warned against the American system of class actions, which are "enormous and involve—in one recent case I heard of—as long as 15 years in progress where you get a whole class of present and prospective applicants for a job claiming millions of dollars for damages". He agreed with the TUC, however, that the Directives should allow for actions on behalf of "groups of individuals" (Q 69, pp 68, 53, QQ 146, 20, 179, 342).

136. 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.


39   Section 37 of the Republic of Ireland's Employment Equality Act 1998 provides a general exemption for any "religious, educational or medical institution" which is run by a religious body. Back

40   Case C-450/93 Kalanke v Bremen [1995] ECR I-3051 and Case C-409/95 Marschall v Land Nordrhein-Westfalen [1997] ECR I-6363, recently supplemented by the judgment in Case C-158/97 Badeck, handed down on 28 March 2000. Back

41   These issues are examined in more detail below, paras 154-61. Back

42   See Case C-185/97 Coote v Granada Hospitality Ltd [1998] 3-CMLR 958. Back


 
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