Employment Equality [EU]

Table of Contents

Early Developments and Gender Pay

The EU treaty provides the principle of equality of treatment in employment. The provisions of equality have had a dramatic effect on employment equality through the European Union. This is a fundamental part of the common market. The European Union has also introduced directives in the area of paternity and maternity rights.

The European Union has made several specific directives requiring states to bring a high level of employment equality protection into law. In addition, cases have been taken directly to challenge national laws and practices inconsistent with European Union treaty and directive.

One of the earliest directives was in the area of equal pay. All discrimination in relation to pay and conditions of remuneration for the same work or a work of equal value must be eliminated. Where a classification is used for determining pay, it must be based on the same criteria for men and women.Employees who have been wronged by failure to apply the principle are entitled to recourse and pursue their claims.

States must abolish all discrimination between men and women arising from laws, regulations, or administrative practices which do not comply with the principle. Measures must be taken to ensure provisions in collective agreements, wage agreements, and individual contracts which are contrary to the principle of equal pay are void.

Employers must be protected against dismissal by an employer as a reaction to taking enforcement action or proceedings to enforce the equal pay principle. The rights must be brought to the attention of employees.

Equal Gender Treatment

Another early directive provides for equal treatment and prohibits discrimination on the grounds of sex either directly or indirectly by reference to marital or family status. States may exclude from the scope of the directive activities which by their nature or context, the sex of the worker is a determining factor.

There must be no discrimination on the grounds of sex in conditions of employment, including selection, criteria for access for jobs, and posts at all level within businesses. The principle also applies to vocational guidance, training, and retraining.

The principle applies to work conditions including the conditions guaranteeing against unfair dismissal. States must take steps to ensure that laws and regulations contrary to the principle are repealed or amended

Inappropriate provisions in collective agreements, employment contracts, internal rules of business, or independent professions are declared void. Labour and management must be required to undertake the revision of the provision.

Persons wronged by the failure to apply the principles must have the right to take legal action for compensation. Employees must be protected from dismissal as a reaction to complaints or proceedings. The rights must be brought to the attention of employees.

A modernising directive provides for equal opportunities and treatment for men and women employed in relation to access to employment, dismissals, vocational training, membership of organisations and unions and occupational social security schemes.

The directive covers discrimination harassment, sexual harassment, pay, occupational social security schemes

The modern directive provides for required remedies and enforcement that must be available. It requires increased protection for victims of discrimination even after the end of employment. It requires states to introduce measures to ensure real and effective compensation or reparation for damage resulting on discrimination on the grounds of sex.

The state must provide effective, proportionate, and dissuasive penalties which can be used against those that violate the directive. Employers are to be encouraged to take steps to prevent discrimination, harassment, and sexual harassment.

States must take gender dimension into account in the design and formulation of laws, regulations, administrative practices.

Further Equality Grounds Added

An EU directive lays down a general framework to ensure equal treatment of individuals regardless of religion, belief, disability, age, sexual orientation in relation to access to employment or occupation and membership of certain organisations. The treaties (following the Treaty of Amsterdam) specifically empowers the EU to combat discrimination on these above broader bases.

Anti-discrimination rules apply to

conditions of access to employment and self-employment
vocational training
employment and working conditions including pay and dismissal
membership or involvement in an organisation of employers or employees or any other organisation whose members carry on a profession.

The principle applies to both direct discrimination and indirect discrimination. Direct discrimination is differential treatment based on a specific characteristic. Indirect discrimination is any provision, criteria or practice which is neutral on its face but is liable to affect one or more individuals to a greater extent, such as to constitute discrimination in effect.

States may maintain and adopt measures intended to prevent or compensate for existing inequalities.

Harassment which creates a hostile environment is deemed discrimination. Reasonable arrangements must be made to guarantee the principle of equal treatment for disabled persons, limit it to cases which do not involve unjustified difficulties.

Discrimination may be permitted where the nature of the post so requires. Differences in treatment on the grounds of age may be allowed where they are objectively and reasonably justifiable by the district labour market aim, and are appropriate and necessary to the achievement of that aim e.g. older worker\’s job experience.

Equal treatment in employment and occupation

This directive sets out a general framework to ensure equal treatment of individuals in the European Union (EU) at the workplace regardless of their religion or belief, disability, age or sexual orientation.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

The directive aims to ensure that persons of a particular religion or belief, disability, age or sexual orientation do not suffer from discrimination and instead enjoy equal treatment in the workplace.sCOPE

Scope

What kind of discrimination does the directive cover?

It covers both direct discrimination (differential treatment based on a specific characteristic) and indirect discrimination (any provision, criterion or practice which is apparently neutral but puts the people in the above categories at a disadvantage compared to others). Harassment, which creates a hostile environment, is deemed to be discrimination.

Who does the directive apply to and who does it not apply to?

The directive applies to all individuals, whether they are working in the public or private sectors, in relation to:

conditions of access to employed or self-employed activities, including selection criteria and recruitment conditions and including promotion;
vocational training;
employment and working conditions (including dismissals and pay);
membership of and involvement in an organisation of employers or workers or any other organisation whose members carry out a particular profession.

The directive does not cover differences of treatment based on nationality or payments of any kind made by State schemes, including State social security or social protection schemes.

What can be done to stop the discrimination?

EU countries are obliged to ensure that judicial and/or administrative procedures are available to all people who consider themselves wronged by a failure to apply the principle of equal treatment to them. This still applies even after the relationship in which the discrimination is alleged to have occurred has ended. Further details about remedies and enforcement can be read in Chapter II of the directive.

How can the situation be improved?

According to a report (COM(2014) 2 final) on this directive and the Racial Equality Directive, the main challenge is to raise awareness of the protection that already exists and to ensure better practical application of the directives.

References

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 2000/78/EC

2.12.2000

2.12.2003

OJ L 303 of 2.12.2000

RELATED ACT

Report from the Commission to the European Parliament and the Council: Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Racial Equality Directive) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Employment Equality Directive) (COM(2014) 2 final of 17.1.2014 – not published in the Official Journal).

Equal treatment irrespective of racial or ethnic origin

Directive 2000/43/EC — implementing equal treatment irrespective of racial or ethnic origin

It aims to combat discrimination on the grounds of racial or ethnic origin.
It lays down minimum requirements for implementing the principle of equal treatment between persons in the European Union (EU).
By discouraging discrimination, it should help to increase participation in economic and social life and reduce social exclusion.

Key Points

This directive is based on the principle of equal treatment between persons. It forbids both direct* and indirect* discrimination, harassment*, instructions to discriminate and victimisation*.

The directive applies to all persons and to all sectors of activity, regarding:
access to employment;
working conditions, including promotion, pay and dismissals;
access to vocational training;
involvement in workers’ or employers’ organisations, and in any professional organisation;
access to social protection and to healthcare;
education;
social advantages;
access to and supply of goods and services, including housing.

The directive does not cover difference of treatment based on nationality, or the conditions of entry and residence for citizens from non-EU countries.

Derogations from the principle of equal treatment

In the field of employment, a derogation may be authorised where race or ethnic origin constitutes a genuine professional requirement. This derogation must be justifiable by the nature of the activity and the conditions under which it is exercised. It must be legitimate and proportionate.
The directive does not oppose positive action, namely national measures aimed at preventing or compensating for disadvantages connected with race or ethnic origin.

Remedies and enforcement

Anyone who believes themselves to be a victim of discrimination on grounds of racial or ethnic origin must have access to legal and/or administrative proceedings. Associations or other interested legal persons may also undertake proceedings either on behalf of, or in support of the complainant.
The victim of discrimination only needs to establish a presumption of discrimination after which it is for the respondent to prove that there has been no discrimination.

Social dialogue and civil dialogue

The social partners ensure the promotion of equal treatment, specifically by monitoring practices in the workplace, producing codes of conducts and concluding collective agreements. More generally, the directive encourages the conclusion of agreements establishing non-discrimination rules in the fields which fall within the scope of collective bargaining.
Civil dialogue with the civil society organisations concerned is also encouraged.
Bodies for the promotion of the principle

Each EU country must establish at least one body dedicated to combating discrimination, which is, in particular, responsible for helping victims and conducting independent studies.

Council Recommendation

In 2013, the Council adopted a recommendation calling for measures to be taken in a number of area, including anti-discrimination, to strengthen the integration of Roma people. The recommendation builds upon Directive 2000/43/EC and underlines the importance of its practical enforcement.

Application & Background

It has applied since 19 July 2000. EU countries had to incorporate it into national law by 19 July 2003.

The Treaty of Lisbon (Article 19 of the Treaty on the Functioning of the EU) provides the EU with a legal basis to combat all forms of discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

KEY TERMS

Direct discrimination: where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.

Indirect discrimination: where an apparently neutral rule, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that rule, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Harrassment: when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

Victimisation: unjust or cruel treatment of someone who complains of discrimination or who assists someone else in a complaint of discrimination.

MAIN DOCUMENT

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, 19.7.2000, pp. 22-26)

Equality Enforcement

The directive provides a series of mechanisms to ensure protective enforcement of the principle. Mechanisms include

improvement of legal protection by reinforcing access to justice or conciliation proceedings
shifting the burden of proof; once facts have been established from which discrimination may be inferred, the burden lies with the defendant;
protection of victims of discrimination against reprisals including dismissal;
dissemination of adequate material to vocational and educational bodies within the workplace.

Discriminatory national provisions must be abolished and are declared void.

Anyone who considers their equal treatment rights have not been respected can access judicial or administrative proceedings. Real and effective compensation or reparation is available for any loss or damage suffered.

The directives provide that the burden of proof in discrimination cases both on the basis of direct and indirect discrimination will lay on the respondent, once the claimant raises sufficient evidence from which a discrimination may be inferred.

The relevant national bodies have the authority to promote, analyse, monitor and support equal treatment of all people covered by the legislation. Equal treatment is to be applied between men and women when drafting and implementing laws, regulations, administrative provisions, policies and activities covered by the legislation. The content of the legislation is to be made as widely known as possible.

Wider Equality

An EU directive provides for the principle of equal treatment of men and women outside the workplace. It applies to access to goods and services outside the workplace whether public or private.

This difference in treatment of men and women is only permitted if it is justified by legitimate aim e.g freedom of association re single-sex clubs.

All direct discrimination between men and women is prohibited including unfavourable treatment. indirect discrimination is prohibited. Harassment, sexual harassment, and incitement of discrimination are prohibited. Positive discrimination is permissible.

Sex may not be a criterion for the calculation of premiums and benefits for the purpose of insurance and financial services in new contracts after 2008. Insurance companies’ practices of separating men and women into different pools are presumptively discriminatory.

Differentiation is permissible where there are different risk e.g. life expectancy. States may permit practices such as this, where a sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data available to the public. States must review the justification for these derogations five years after the commencement of the directive taking account of actuarial and statistical data.

States must ensure that the costs related to pregnancy and maternity are attributed equally to men and women including sickness insurance.

Each state must charge one or more bodies with the promotion of equal treatment of men and women on a national basis in areas covered by the directives.

Victims must have the possibility of resort to legal or administrative proceedings or appropriate reparation or compensation. Penalties must be effective proportionate or dissuasive. Once the claimant has established facts in which discrimination may be presumed, the burden of proof rest with the respondent. Protection of victims and witnesses of discrimination based on sex against risks of reprisal must also be secured.

Member states must ensure laws, regulations, administrative provisions contrary to the principle of equal treatment are abolished. Contractual provisions, internal rules, professional association rules et cetera are void and must be amended.

States must lay down penalties applicable to infringements.

Self Employed

There is a directive in relation to self-employed workers and their spouses who have participated in self-employed employment. Provisions contrary to the principle of equal treatment must be eliminated by states, in particular, in respect of the establishment or extension of a business or other self-employed activity.

The principle of equality applies to self-employed activity including the establishment of business. Spouses who establish a business must be treated the same as other persons. Where a national social protection scheme exists for self-employed workers, spouses and life partners who participate in the activities of self-employed workers, have the same right to social protection on their own account States must decide whether social protection is implemented on a mandatory or voluntary basis.

Self-employed women and female spouses and like partners who contribute to the activity of self-employed workers shall be entitled to a maternity allowance to at least 14 weeks. This must be sufficient to enable them to interrupt their activities if they wish to do so. The allocation must, therefore, be equivalent to the average loss of income or profit (this may be subject to a ceiling).

The allowance provided at the national level in the event of an interruption to activities on health grounds and/or family related allowance is determined by the state. During the interruption in their activities due to maternity, women must have access to national social services.

Pregnancy Protection

There is a health and safety legislation protecting pregnant workers and workers who have recently given birth or are breastfeeding. Exposure of workers in these categories must be avoided by adjusting their working conditions or working hours.

Where this is not technically objectively feasible or cannot reasonably be required on duly substantiated grounds, the employer must take necessary measures to move the employee to another job. Where this is not feasible, the employee must be given leave for the whole of the period concerned necessary to protect their health and safely

Pregnant employees must not be obliged to perform duties for which an assessment has revealed a risk of exposure to agents or working conditions listed in the directive.

States must take measures to ensure that employees are not obliged to do night work during pregnancy or for a period following childbirth, subject to submission of a medical certificate. They must be transferred to day work where possible or otherwise excused from work or by extending maternity leave.

Maternity leave must be for at least 14 weeks before and/or after delivery, two of which must be before delivery. Pregnant employees have the right to take leave without loss of pay to enable them to undertake antenatal examinations if they take place during working hours.

Women may not be dismissed for reasons related to their pregnancy including upon return to work. In the event of dismissal, the employee must give good grounds in writing. Measures must be taken to protect employees from the consequence of unlawful discrimination.

Employment rights under the employment contract including maintenance of payment or an adequate allowance for pregnant workers or workers who have recently given birth or who are breastfeeding must be ensured. A measure is deemed adequate if it guarantees an income at least equivalent to that which the worker concerned would receive in the event of a break in activities on grounds connected with health. It may be subject to a ceiling laid down by national legislation.

The right to pay or an allowance may be subject to certain conditions. Not more than 12 months service shall be required before the presumed date of delivery

Harassment

The EU Commission has produced a code of practice on sexual harassment. Employees in the public and private sector, trade unions, and employee are called upon to follow the principles of the code.

The employer should provide a policy statement which states that sexual harassment shall not be permitted or condoned and that employees have a right to complain. The policy must leave no doubt as to what is considered the inappropriate behaviour of which in certain circumstances may be unlawful

The policy should explain the procedure to be followed in the event of a complaint and specify the disciplinary measures applicable. It should provide assurance that complaints will be dealt with seriously, expeditiously and confidentially and that complainants will be protected against victimisation.

The code must be communicated to everyone concerned so as to ensure the widest awareness. Managers must explain the organisation\’s policy to their staff and must take appropriate measures to actively support victims and provide information required. The training of managers and supervisors is seemed to be important.

Clear procedures must be developed giving practical guidance on dealing with harassment. It must draw the employee\’s attention to their legal rights. Employees should be advised to try to resolve the problem informally by explaining either themselves or to a third-party that the behaviour is not welcomed, offensive or interferes with work.

If the unwelcomed conduct persists, there are grounds for a complaint. It is recommended that a formal procedure or dealing with complaints be set up in which employees can place their trust and which specifies the person to whom the complaint should be brought. It recommends that someone be designated to provide advice and assessment.

The complainant and alleged harasser have the right to be represented by a trade union representative, friend or colleagues. The employer should monitor and review procedures in order to ensure they\’re working properly.

Investigations of complaints must be carried out sensitively by independent persons with due respect for the rights of the complainant and the alleged harasser. Complaints must be resolved speedily and confidentially at the end of the investigation. Any violation of the organisation\’s policy must be treated as a disciplinary offence.

Disciplinary rules must make it clear what is regarded as inappropriate behaviour. They should include a range of penalties. Victimisation against a person bringing a claim in good faith is regarded as a disciplinary offence.

Trade unions must formulate and issue clear policy statements on harassment and take steps to raise awareness of the problem in order to help create a climate in which harassment is not condoned nor ignored. They must declare that harassment is inappropriate behaviour and should inform staff about its consequences.

Employers have the responsibility for discouraging any form of reprehensible behaviour and must make it unacceptable. They can contribute to preventing harassment through awareness and sensitivity to the issue and by ensuring conduct by themselves and colleagues that do not cause offense. Employees should give support to victims of harassment and inform management and staff representatives through appropriate channels.

Parental Leave

EU directives provide for parental leave. Employees are entitled to parental leave on the birth or adoption of a child. This leave may be taken until the child has reached an age determined by national law or agreements but not less than eight.

The directive applies to men and women irrespective of the type of employment whether open-ended, fixed, temporary, part-time. Parental leave must be granted for at least four months. In principle, employees should be able to take all of their leave. It should not be transferable from one parent to another. Transfers may be authorised on condition each parent retains at least one of the four months of leave.

The conditions of access to leave are determined by national law. It must be adapted to the needs of parents and employees by granting leave on a full-time or part-time basis in a piecemeal way or in a time credit form. The length of service for qualification must not exceed one year.

Where appropriate, states may authorise postponement of leave by the employer for justifiable reasons related to the organisation. It may authorise special arrangements to ensure the proper operation of small businesses.

Employees wishing to take parental leave must give notice to the employer. The period of notice is specified by national law.

Each state is encouraged to define additional measures and specific conditions to the taking of leave by adoptive parents, parents of children with a disability or long-term illness.

After taking parental leave employees have a right to return to the same job. If this is not possible, employers must offer them an equivalent or similar job consistent with the employment contract or relationship.

Rights acquired or in the process of being acquired by the employee on the dates on which parental leave starts must be maintained at a standstill until the end of the leave.

Employer leaves must be protected against less favourable treatment or dismissal on the grounds of taking parental leave. Matters relating to the social security and income in relation to parental leave are determined by states.

On the return to work, employees must be able to request changes in their working hours or patterns for a set period of time. Employers must consider and respond to such requests taking account of the needs of both employers and parents.

Employees may also request leave on the ground of force majeure for family reasons. This leave may be requested in particular in cases of sickness or accident making the immediate presence of the employee indispensable.