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Key features of the package
Grounds of discrimination
In relation to the Employment Directive only, member states will be required to introduce protection against discrimination on the grounds of religion or belief, disability, age, sexual orientation, and racial or ethnic origin. In the UK, it is likely that new legislation will be required to cover equal treatment on grounds of age or sexual orientation; and in Great Britain, on grounds of religion or belief.
Third-country nationals
Both directives apply to any person who is within a member state when the act of discrimination occurs. Therefore, neither directive excludes third-country nationals from protection. Both directives, however, plainly state that discrimination based on nationality is outside their scope and cannot be used to challenge conditions that a member state applies to the entry or residence of third-country nationals, and any treatment they receive as a result of their legal status.
Direct and indirect discrimination
Both directives set out clear definitions of direct and indirect discrimination.
The definition of direct discrimination is very similar to that in UK legislation.
The definition of indirect discrimination is broader than the one in current UK law. The test for indirect discrimination is whether 'an apparently neutral provision, criterion or practice ... would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons.' The directives provide that indirect discrimination will be unlawful unless the provision, criterion or practice 'is objectively justified by a legitimate aim and the mains of achieving that aim are appropriate and necessary.'
Harassment
Harassment is to be regarded as a form of discrimination. It is defined as unwanted conduct related to any of the grounds covered by the directives, or conduct which is intended, or has the effect of, violating an individual’s dignity and creating a humiliating, intimidating or hostile environment.
Scope of the directives
The Employment Directive affords protection in the following areas:
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employment
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self-employment
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working conditions
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access to vocational training and work experience
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membership of workers', employers' or professional organisations
The Race Directive provides much wider protection against discrimination and includes the following:
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employment
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self-employment
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working conditions
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access to vocational training and work experience
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membership of workers', employers' or professional organisations
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education
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social protection, including social security and health care
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'social advantages' such as concessionary fares and subsidised meals
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access to goods and services which are available to the public, including housing
Positive action
Both directives recognise that equal treatment may not be sufficient to overcome the weight of accumulated disadvantage experienced by discriminated groups. They permit member states to take positive action measures to 'prevent or compensate for' situations of inequality.
Genuine occupational qualification
Member states are permitted to allow difference in treatment on any of the grounds covered by the directives where the nature of a particular job, or the context in which it is carried out, justifies this. The Employment Directive permits member states additional leeway to permit difference in treatment on grounds of religion or belief where the employment is in a church or other organisation with a religious ethos.
Defence of rights
Both directives enable organisations with an interest in combating discrimination, including non-governmental organisations (NGOs), to support complainants or to bring proceedings on their behalf (with their approval).
Burden of proof
The directives recognise that it is often very difficult for complainants to obtain evidence in discrimination cases, where the relevant information is often in the respondent's hands. Both directives state that when a complainant establishes before a court or tribunal 'facts from which it may be presumed that there has been direct or indirect discrimination,' it is for the respondent to prove that discrimination has not occurred.
Victimisation
Both directives include protection against victimisation as a consequence of complaining of discrimination, or bringing or taking part in discrimination proceedings.
Bodies to promote equal treatment
In the Race Directive only, there is an obligation on each member state to designate a body, along the lines of the CRE, to promote racial equality. Such bodies should have powers to assist victims of discrimination to pursue their complaints, conduct independent surveys concerning discrimination, and publish independent reports with recommendations relating to such discrimination.
Public information
Both directives require member states to publicise widely both their existing laws on equal treatment and non-discrimination, in the areas within each of the directives, and any new measures they adopt to bring their laws in line with the directives.
Social dialogue
Both directives require member states to promote dialogue between both sides of industry 'with a view to fostering equal treatment' including through workplace monitoring, collective agreements, codes of conduct, research, or exchange of good practice.
Compliance and implementation
Both directives require member states to introduce or amend their laws and procedures to comply with the directives.
Compliance with the Race Directive is required by 19 July 2003.
Compliance with the Employment Directive in relation to religion and sexual orientation is required by 2 December 2003, and in relation to disability and age by December 2006.
From the date for compliance, member states will also be expected to ensure that their laws, regulations and administrative provisions, as well as employment contracts and collective agreements, are non-discriminatory
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