Equality Framework Directive (2000/78/EC)
European Race Directive (2000/43/EC)
For many years applicants in sex discrimination and equal pay cases have had a distinct advantage over Applicants in race and disability cases. Whenever the Sex Discrimination Act or Equal Pay Act was drawn so narrowly as to deprive an Applicant of a claim, reliance could usually be placed on the underpinning European Equal Treatment or Equal Pay Directives to achieve the desired end. With race and disability on the other hand, there has been no equivalent European Directive to fill the gaps. And as for age, religion or sexual orientation, there has been no law at all preventing discrimination, whether at domestic or European level.
All that is set to change. Under the new European Race Directive (2000/43/EC), all Member States including the United Kingdom will have to introduce laws by 19 July 2003 to outlaw discrimination on the grounds of race. Under the new Equality Framework Directive (2000/78/EC), Member States including the United Kingdom will have until 2 December 2003 to implement laws outlawing discrimination on the grounds of sexual orientation and religion, and until 2 December 2006 for discrimination on the grounds of disability and age. These two new Directives represent the most significant and far reaching change to equality law since Britain joined the European Community.
The Race Directive was sped through the European statute books in part as a response to the rising tide of racist violence in Europe combined with the impending enlargement of the Community and the rise of the far right in countries such as Austria.
The Directive covers both direct and indirect discrimination. The definition of direct discrimination is broadly in line with our existing Race Relations Act. Indirect discrimination however has a different definition. It is defined as occurring "where an apparently neutral provision, criterion, or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justifiedÉ" The significant difference here from the terms of the Race Relations Act is that the test of "particular disadvantage" is a broader test, and suggests that there may be different ways of proving the disadvantage as opposed to just the narrow workplace statistics normally required by Tribunals which can be so difficult to produce.
There is also a definition of racial harassment: "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." Racial harassment will no longer be the nameless "any other detriment".
The Equality Framework Directive applies the same broad definitions of direct and indirect discrimination and harassment in relation to religious belief, disability, age and sexual orientation. Direct discrimination follows the standard formula of contrasting how one person is treated in comparison with another in similar circumstances. Indirect discrimination follows the definition in the Race Directive.
In terms of impact on the workplace, it is the provisions of the Framework Directive relating to age which are likely to have the most impact. It will apply to discrimination against both younger and older workers. Although under Article 6 Member States are allowed to provide for age criteria in relation to access to jobs, training or retirement, these conditions must be objectively justified. Therefore any age criteria must have some objective foundation. For example the criteria can provide that the person must not be so old as to be infirm and incapable, or so young that they cannot have the maturity or qualifications to do the job in question. But the criteria must relate to the person, and not just consist of arbitrary qualifications for example of a fixed retirement age. Again, service related increments will be permissable, provided they can be justified.
Otherwise, the age provisions are drawn in the widest terms. There is no limit at either end of the age scale, at which the Directive ceases to apply. Nor are any particular job types excluded, though there is provision for excluding the operation of the Directive from the armed forces (likewise with disability as well).
Occupational pension schemes are however given a let-out. Ages can be fixed for admission or entitlement to retirement or invalidity benefits, and age criteria for actuarial calculations are not unlawful.
In terms of the disability provisions, it is likely that our Disability Discrimination Act will in large part satisfy the requirements of the Directive. However, the Directive admits of no exception for small employers and the government has already signalled its intention to remove the current exclusion for employers of less than fifteen staff. Further, the general definitions of direct and indirect discrimination in the Framework Directive do not fit easily with the broad definition of discrimination in the Disability Discrimination Act ("for a reason which relates to the disabled person's disability"). Although this test is generally regarded as covering both direct and indirect discrimination, it does not equate directly with the definitions in the Directive. Cases of direct disability discrimination will not be capable of being justified under the Directive, unlike the broad ranging justification defence built into the very definition of all types of disability discrimination in the UK. There is specific allowance made in the Framework Directive for national laws requiring an additional obligation to carry out adjustments to accommodate disability.
The most obvious consequence of the provisions outlawing discrimination on the grounds of religion or belief is that discrimination against the 15 million Muslims in this country will soon be unlawful. This will avoid the clumsy mechanism often currently adopted of having to fit such religious discrimination into the structure of an indirect Race Relations Act case. Article 4 of the Framework Directive preserves a genuine occupational qualification for churches and other religious organisations which will be allowed to require people working for them to share the same religious beliefs: to act in "good faith and with loyalty to the organisation's ethos".
The effect of introducing laws prohibiting discrimination on the grounds of religion will broadly bring Great Britain into line with Northern Ireland where discrimination on the grounds of religious belief has been unlawful since 1976.
There is no explanation in the Directive as to what discrimination on the grounds of sexual orientation will involve. Because of the current lack of protection against sexuality discrimination in the United Kingdom, temporarily halted for the moment at least by the EAT in MacDonald v MOD 2000 IRLR 748, it can be hoped that the Government will choose to implement this part of the Directive sooner than the 2 December 2006 deadline.
In relation to all the forms of protected status in the Framework Directive (namely age, religion, sexual orientation and disability) positive action is expressly catered for and is not to be regarded as conflicting with the basic principles of equality. Article 7.1 specifically provides that specific measures may be adopted by Member States to prevent or compensate for the disadvantages suffered by certain social groups. It remains to be seen if the Government will change the long standing position of this country not to encourage positive action measures (see LELR 55, February 2001)
The Directive is only a Framework Directive. It will be up to the Member States to decide on the detail of how to implement the laws in a manner that is appropriate. What is sure is that the provisions of the Framework Directive will result in dramatic changes to employment law and industrial practice in the workplace.