AMENDING THE 1976 EQUAL TREATMENT DIRECTIVE
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.
||Article 141 EC; co-decision; qualified majority voting
||Education and Employment
|Basis of consideration:
||Minister's letter of 4 December 2000
|Previous Committee Report:
||HC 23-xxviii (1999-2000), paragraph 3 (1 November 2000)
|To be discussed in Council:
||No date set|
||Legally and politically important
||Not cleared; further information requested
5.1 There are two main reasons for updating
Council Directive 76/207/EEC (the Equal Treatment Directive).
The first is to reflect the changes made by the Treaty of Amsterdam
in particular, the extension of Article 119 (now 141)
to cover "matters of employment and occupation", instead
of, as formerly, equal pay for men and women only. The second
is to reflect the judgments (more than 40) given by the European
Court of Justice (ECJ) on the interpretation of the Directive.
5.2 When we last considered this document
(in November), we had reservations about some aspects of it. We
raised these with the Minister for Employment, Welfare to Work
and Equal Opportunities at the Department for Education and Employment
(the Rt. Hon. Tessa Jowell), and left the document uncleared.
The Minister has now sent us a copy of her letter to Lord Tordoff
(who had raised similar concerns on behalf of our sister Committee
in the House of Lords) in which she addresses the issues.
The Minister's letter
5.3 We asked the Minister why the Commission
had not taken the opportunity to widen the scope of the proposal
to areas other than employment and occupation, by using Article
13 as well as Article 141 as the legal base. In her letter, the
Minister reminds us that, while Article 141 operates through qualified
majority voting and co-decision, Article 13 uses unanimity and
co-operation. She continues:
the two would result in an extremely unwieldy procedure, requiring
full co-decision with the Parliament, but only allowing the Council
to proceed on the basis of unanimity. I am sure that it is, at
least in part, in order to avoid the delays inherent in this combination
that the Commission prefers to make two separate proposals, and
I would support that.
"I appreciate that you would prefer to widen
the current proposal to the same scope as the Race Directive,
but I doubt whether it would not [sic] be practicable for the
Commission to bring forward what would amount to major revisions
of the draft, in a totally new subject area, at this stage. Proposals
need to be consulted on externally before being finalised, for
example Article 138 of the Treaty places the Commission under
an obligation to consult with social partners before bringing
forward any legislation in the field of social policy. We would
not wish to encourage the Commission to ignore this obligation.
"I accept your concerns over the possibilities
for confusion in other Member States arising from two separate
proposals, but agree with you that this is unlikely to be a problem
for the UK, as we already have law in these areas. Taken together,
I hope you will agree that there is no overriding reason for the
Government to press the Commission to revise their recent proposal."
5.4 Our other key concern related to the
number of differences between the draft Directive and the recently
agreed Race Directive. We noted that our sister Committee in the
House of Lords had sent the Minister a detailed list of the inconsistencies,
asked to see her response, and trusted that she would be negotiating
for their removal.
5.5 In her letter, the Minister explains
that the current proposal was issued at a point when changes to
the Race proposal were still subject to confidential negotiations.
"The definition of harassment,
upon which your letter comments [pointing out that some provisions
in the Race Directive are missing in the current proposal], is
a particularly good example of how sensible changes agreed during
the course of the Race Directive negotiations could not, because
of the timing, be revealed by including them in the gender proposal."
5.6 The Minister considers, however, that
differences between the Directives can be justified in some instances.
One example is the definition of indirect discrimination, where
the current proposal uses the definition in the Burden of Proof
instead of the compromise agreed for the Race Directive. The Minister
reminds us that the Government (as well as the scrutiny committees
in both Houses) preferred the definition in the Burden of Proof
Directive, which was unacceptable to some Member States because
their constitutional arrangements did not allow them to collect
statistics relating to ethnic origin. This problem does not arise
in connection with gender discrimination, and the Government's
present view is that there is no need for a compromise definition.
The Minister recognises that it could, in some circumstances,
be unsatisfactory to have different tests in relation to discrimination
on grounds of sex on the one hand, and discrimination on grounds
of race, religion or belief, disability, age and sexual orientation
on the other, especially while the Courts are establishing how
the compromise definition works in practice. She thinks careful
consideration about how to alleviate this problem will need to
be given during the implementation period.
5.7 In relation to two other definitions
that for direct discrimination (which is not defined in
the current proposal) and that for positive action (which is defined
slightly differently in the two Directives) the Minister
admits the anomalies, but does not consider that they will lead
to significant difficulties. She agrees to ask the Commission
why the draft Equal Treatment Directive does not contain a definition
of direct discrimination.
5.8 The Minister also undertakes to seek
clarification of the provisions in the Equal Treatment Directive
relating to post-dismissal situations, and to suggest to the Commission
that it amend the provisions on victimisation along the lines
of those in the Race Directive. She states: "we will be pressing
for many of the areas of overlap between this Directive and the
Race Directive to be couched in similar terms." The Minister
repeats her intention of keeping us informed of progress in her
attempts to clarify the way in which the mainstreaming provision
in the Directive (which she supports) would work in practice.
5.9 Faced with these inconsistencies,
it is scant comfort that our concerns about the hasty agreement
of the Race Directive, and the confidentiality which was such
a feature of its negotiation, have so quickly proved justified.
5.10 We are pleased that the Minister
agrees that many aspects of the Equal Treatment Directive would
benefit from a more direct comparison with the final version of
the Race Directive. We urge her to press for amendments to the
current proposal, especially as we are not as confident as she
appears to be that the differences of definition will not pose
5.11 We do not find the arguments against
widening the scope of the current proposal conclusive. Once again,
fear of delay appears to take priority over more thought-through
procedures. If there are to be two separate measures, we urge
the Minister to press for as much consistency as possible between
5.12 We shall keep the document under
scrutiny until we know more about progress on the measure generally,
and on the items noted in 5.8 above, in particular.
15 (20831) - ; see HC 23-vii (1999-2000), paragraph
4 (2 February 2000) and HC 23-xix (1999-2000), paragraph 2 (24
May 2000). Back
Directive 97/80/EC. Back