Schlüsselbegriffe des Antidiskriminierungsrechts der EU
Hello, my name is Nicola Braganza and I am a barrister. I specialise in discrimination and employment, immigration and asylum and mental health and community care law, and today I am speaking to you about non discrimination on the grounds of race, religion, disability, age and sexual orientation.
You will see that those grounds are covered by two particular Directives.
The first is Council Directive 2000/43/EC of 29th of June 2000 and that implements the principle of equal treatment between persons irrespective of racial or ethnic origin. That is referred to as the ‘Race Discrimination Directive’.
The second is Council Directive 2000/78/EC of the 27th of November 2000. That establishes a general framework for equal treatment in employment and occupation. That is referred to as the ‘Equal Treatment Framework Directive’.
Now why do we have these Directives?
The preambles in both the Race and the Framework Directive provide similarly in respect of the right to equality before the law and protection against discrimination for all persons, constituting a universal right. This is a fundamental right and that is recognized in various international instruments - they include the Universal Declaration of Human Rights, the United Nation’s Convention on the Elimination of All Forms of Discrimination against Women, the international Convention on the Elimination of All Forms of Racial Discrimination and the United Nation’s Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. And also we find provision made within the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Now, discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the EC treaty. And also the purpose of the Directives is to ensure the development of democratic and tolerant societies which allow the participation of all persons, irrespective of race or ethnic origin.
So what is the purpose?
The purpose of this Directives is to prohibit any direct or indirect discrimination, be it on racial or ethnic origin grounds. On terms of the framework Directive, be it on the grounds of religion, age, sexual orientation or disability.
The other purpose is that the Directives aim to eliminate inequalities and promote equality between men and women, especially since women are often the victims of multiple discrimination and you will find this again in the preamble.
How is this done?
It is done by the appreciation of facts, from which inferences can be drawn of direct or indirect discrimination. Persons, as set out in preamble 19, who have been subject to discrimination should have adequate means of legal protection. The effective implementation of the principle of equality requires adequate judicial protection against victimisation, which is another concept and gives protection to those who suffer adverse treatment as a result of bringing a complaint concerning discrimination, which might as well arise in respect of somebody else who has suffered or suspects that they have suffered discrimination.
And finally how do we do that?
Within discrimination law, particular to discrimination law, are the rules on the burden of proof. And those rules are adapted as provided for at 21 of the preamble to the Race Directive. That, where there is a prima facie case of discrimination, if the complainant has made out that prima facie case, the burden then shifts to the respondent. It is for the respondent to prove that in fact the treatment arises and is in no way connected with discrimination. In certain circumstances, when the court is investigating facts, there is no need to apply the burden of proof.
And also what the Directive provides is that protection against discrimination is strengthened by the existence of a body with competence to analyse the problems involved. The Directives provide that it is important to bear in mind the minimum requirements and then it is for the national states to add if they wish to those requirements; that these are the basic principles that must be complied with. Finally 26 of the preamble provides that member states should provide effective, proportioned and dissuasive sanctions in case of breaches of the obligations. And the purpose of this obviously is that, if there are no effective sanctions, then the aims of the Directives will not be progressed or will not be upheld, because in fact, there will be no sanction faced to those who discriminate. In certain circumstances, very limited circumstances, discrimination can be justified. When for example there is a genuine determining occupational requirement, when the objective is legitimate and the requirement is proportioned. The Directives also make provisions of certain circumstances for positive action and you will see this also within Articles 4 and 5.
So we come now to the essential concepts, the key concepts that arise within discrimination. Article 1 of the Race Directive sets out the purpose of the Directive and that is to lay down a framework for combating discrimination on the grounds of racial, ethnic origin. The Framework Directive repeats this in similar language in respect of the other protected characteristics. The definition provided for in Article 2 is now for the purposes of the Directive the principles of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. And that is set out in mandatory terms: there shall be no such discrimination.
So we come to the key concepts, the types of discrimination, that can arise.
Article 2 of the Race Directive provides first of all a definition for direct discrimination. Direct discrimination is very much about comparing like with like. 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. So the complainant says ‘I have been treated in this way, I have been treated worse than this comparator’. That comparator can be someone that the complainant can specifically point to. This person in my workplace is not black, or is not disabled, or is not of this faith, or this sexual orientation and they were promoted, I was not promoted. They were given a bonus, I was not given a bonus. So you are comparing like situations. Or you have someone who in the past you can point to as a comparator, who has been a comparator. You can say ‘previously this person was promoted and I have not been promoted. This person is white and I am not’. And so you are comparing again like with like. Finally you can rely on a hypothetical comparator. So you can say, ‘if, hypothetically, a white male were working in this environment, they would have been promoted and I have not been promoted’. If you can then show that that difference in treatment is on the ground of whichever the protected characteristic is, that will then make out your direct discrimination case and it is then that you will have made out a prima facie case for the employer to prove. The burden of proof shifts to the employer to prove that there is no discrimination what so ever in the treatment complained of.
The second concept is indirect discrimination.
Indirect discrimination is very different. Indirect discrimination is all about equal treatment but with different consequences. So in indirect, we focus on the consequences.
What does the definition provide?
An apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin and causing there, same similar wording is provided within the Framework Directive, at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. So a provision applied to all, on its face apparently neutral, results in different consequences. So a person, again a black or an Asian person, as a result of this rule is put into disadvantage, that same disadvantage is not suffered by the white comparator and as a result of that, it is then for the employer to show this was justified. The employer was justified in applying that requirement.
The next concept; harassment.
Harassment is defined in Article 2, and that sets out: unwanted conduct related to racial or ethic 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. So you have several components: the conduct is unwanted; the conduct is connected to the protected characteristic, the racial or the ethnic ground; it takes place with a purpose or effect of violating the dignity of a person and also the complainant must show that it creates an intimidating, hostile, degrading or offensive, humiliating environment. That is harassment.
An instruction to discriminate against persons on grounds of racial and ethic origin is also deemed to be discrimination.
And then finally you have victimisation.
Victimisation is provided for in Article 9 and that sets out that member states shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence, as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment. So your complainant has suffered any adverse treatment, within the workplace again, not having access to certain training, not being promoted, not being provided with a bonus, excluded from meetings, or having been disciplined, and that, the complainant says, is because he or she raised a complaint of discrimination. And that connection then gives rise to complaint of victimisation.
What is the scope?
The scope is provided for within Article 3 and as it sets out extends to public and private sectors including public bodies; it extends to conditions for access to employment, to self employment, to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of professional hierarchy, including promotion; it applies to vocational guidance, vocational training, we see that at 1 b, to employment and working conditions, including dismissals and pay; it provides it applies to membership, involvement and organisation of workers or employers or any organisation, whose members carry on a particular profession, social protection, social advantages, education, access to and supply of goods and services available to the public, including housing.
Now, the burden of proof.
In respect of indirect and direct discrimination, once the complainant employee has proof, has made out a prima facie case of discrimination, so that in a direct discrimination complaint there is a difference comparing of treatment, that difference on the prima facie basis is on grounds of the protected characteristic, the burden then shifts - and that is set out in Article 8. But also it provides that more favourable provisions can be implemented by member states - that is Article 2.(A2)
So what are the key issues, which arise in discrimination?
First of all, what is the treatment complained of? Identify what it is, what act or omission has given rise to the complainant saying in fact, this has happened to me on grounds of my race.
Who is the comparator? If it is direct discrimination, the complainant must identify, either an actual or hypothetical comparator. If there is no comparison, there is no direct discrimination.
Is intentional motive relevant? Well, it is recognised that a discrimination case is a very hard to prove. And it is also recognized that very often employers have no ill intention or no motive to discrimination, to discriminate, but nonetheless discrimination may arise. So intentional motive may be relevant, but it is not necessary.
Is there any direct evidence of discrimination? Now this again this is rare, but it might be in the history of the complaint, that the complainant can point to particular remarks that have been said. Which again will then provide an evidential basis, from which the complainant can invite the tribunal or the court to draw adverse inferences.
How has the complainant responded? What if the complainant has not raised any grievance until proceedings have been brought? This is something that is often relied on by employers. They say ‘well, if this were a genuine complaint, then why hasn’t the employee mentioned this before? Raised as a grievance?’ Of course because this is not been raised before, that will not necessarily mean that it didn’t occur. There can be a number of reasons why a complainant doesn’t bring a complaint. But that is something to be aware of when you are bringing a complaint.
And time limits and delay. Well, In terms of time limits to bring a complaint there will be provisions, there may be provisions, for when the complaint must be brought before the court or the tribunal and also provision as to under what circumstances that time limit may be extended. But this is another key issue that arises in discrimination law.
What are the remedies in enforcement. Article 7 of the Directive provides that judicial or administrative procedures, including conciliation procedures, even after the relationship in which the discrimination is alleged to have occurred, has ended. So this provides for discrimination post employment. And associations, organisations or other legal entities with a legitimate interest may engage in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive. So this provides for Equality Commission, certain bodies and institutes, to intervene in the proceedings and to ensure that the purposes of the Directive are upheld. And paragraphs one and two refer then to time limits, that without prejudice to national rules relating to time limits for bringing actions as regards the principal of equality of treatment.
So the sanctions are provided for in Article 15. Sanctions include payment of compensation to the victim. And that must be effective, proportionate, and dissuasive. Because if the sanctions are not so, the purpose and the aims of the Directives will not be progressed and upheld, perpetuated. Declarations, compensation, recommendations, financial loss provides the sanctions, non pecuniary loss in respect of compensation for and in the UK there is compensation for injury to feelings and aggravated damages in respect of the conduct of the respondent and whether that warrance aggravated damages.
In terms of practical guidance. Whether you are acting on behalf of the employer, or whether you are acting on behalf of the employee or whether you are viewing a case of discrimination as a tribunal or a court, what are matters to look out for within the discrimination complaint? The question is, very often and very crucial to complaints about discrimination, is the disclosure process, asking questions of an employer as to statistics and the workforce: How is the workforce made up? How much of the workforce is made up of black and ethnic minority staff? And how much is white? Or how many disabled staff and how many non disabled? And in terms of recruitment, what will statistics reveal to us? From the point of view of the employer to be able to point to statistics and to show monitoring, will reflect a commitment to equal opportunities. From the point of view of the employee, it will provide possibly evidence from which you can draw an inference that there’s been discrimination, if for example there is a very disproportionate distribution of protected characteristics within the workforce. And if there’ve been past complaints, if an employer is regularly accused of discrimination and unsuccessful in those complaints and does nothing about it, again, this provides a basis from which you can invite the court to draw an inference of discrimination. Does the employer have equal opportunity policies? What training is provided in respect of those policies? Also in terms of best practice: guidance that is issued by equal opportunities bodies, to what extend does an employer follow that? Of course, the more there is an adherence and a recognition and compliance with such policies, the greater the commitment to equal opportunities and the more difficult it will be for an employee to invite a court to draw an inference of discrimination.
To what extend is then explanation for the conduct complained of. There is an explanation; it is more likely that discrimination has not occurred. And what is the degree of the treatment complained of? Is the treatment, well this gives rise to the issue of is this simply a bad employer, an unreasonable employer, or is this a discriminatory employer. If the employer is unfair, unreasonable to all his staff, that will not result in discrimination. He might be more unreasonable or she might be more unreasonable to some staff, staff with a protected characteristic, in which case that will also be or amount to direct discrimination that will give rise to an inference being drawn.
So we turn now to the second Directive 2000/78/EC, the Framework Directive.
The protected grounds within the Framework Directive are religion or belief, disability, age or sexual orientation. And the preamble again provides at 11, that discrimination based on any of these grounds may undermine the achievement of the objectives of the EC treaty, in particular the attainment of high level of employment and social protection raising the standard of living and the quality of life, economic and social cohesion and solidarity and the free movement of persons. And to this end, set out at recital 12, any direct or indirect discrimination based on those grounds shall be prohibited throughout the Community.
There are exclusions and adjustments. The Directive shall be without prejudice to national provisions laying down retirement ages. The provision of measures to accommodate the needs of disabled people in the workplace plays an important role in combating discrimination on grounds of disability. This is a concept particular to disability, making reasonable adjustments to accommodate disabled persons. The requirement does not require, the Directive does not require, the recruitment, promotion, maintenance and employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training without prejudice to the obligation to provide reasonable accommodation for those with disabilities.
Exclusions are also provided for within the preamble at 18, 19 and 22 and they include the armed forces, police, prison, emergency services. At 19, provision is made for to safeguard and combat effectiveness of the armed forces. At 22, without prejudice to national laws or marital status. In very limited circumstances, it is set out at 23, a difference of treatment may be justified where a characteristic related to religion, belief, disability, age or sexual orientation constitutes a genuine and determining occupational justification, as we saw in the Race Directive.
Exclusions are further provided for within 24 to 27 of the Directive and the preamble therein, extending to churches, religious associations - there the difference in treatment may be justified in certain circumstances and, without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages, that such measures may permit organisations of persons of a particular religion, belief, disability, age or sexual orientation, where the main object is to promote the needs of those persons.
Again, the burden of proof, as we discussed in the Race Directive, is similarly reflected in the Framework Directive. That the rules of burden must be adapted. So where there is a prima facie case of discrimination the burden shifts. However, in respect of religious discrimination it is not for the respondent to prove the plaintiff adheres to a particular religion; that is for the complainant to show. Or has a particular disability; that is for the complainant to show. Is of a particular age or has a particular sexual orientation; the burden there rests with the complainant. And this is provided in prospect of burden of prove at Article 10.
The key concepts
Article 1 provides for the framework for combating discrimination. Article 2 refers to direct discrimination, indirect discrimination, unless it is justified, and in respect of those with a particular disability, the employer is obliged under national legislation to take appropriate measures in line with the principles in Article 5, to eliminate disadvantage. Article 3 provides for harassment wich is defined in the same ways we saw in the Race Directive. Article 11 provides for victimisation, again this is framed in the same terms.
Reasonable accommodation and adjustment is crucial and particular to disability discrimination. Article 5 introduces a particular concept that is crucial and central to discrimination on grounds of disability or anti-discrimination in respect of disability and that provides for reasonable accommodation. And what that means is that an employer is required to make reasonable adjustments to accommodate an individual’s disability.
What does Article 5 say? To guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided - it is set out in mandatory terms. And what this means is that employers shall take appropriate measures, when needed in a particular case, to enable to allow a person with a disability, to have access, to participate, to advance in employment, or to undergo training, unless such measures impose a disproportional burden on the employer. So an employer can say, I couldn’t provide special lighting, I couldn’t provide special seating because it would have been a disproportional burden on my finances or on my, on the working environment. But he has to then make that case out. Otherwise, there is a requirement that the employer commits to and implements those reasonable adjustments. And it is set out as well, that the burden shall not be disproportionate, when it is sufficiently remedied by measures existing within the framework of the disability policy of the member state concerned. So again, this is a reference to what national law provides in respect of reasonable adjustments. The preamble refers to this at 20 that appropriate measures should be provided and specifically, effective and practical measures to adapt the workplace to the disability. So, for example, adapting premises, adapting equipment, adapting working time, adapting the distribution of tasks or the provision of training or integration resources. In order to determine whether the measures in question give rise to a disproportional burden, and this of course is important from the point of view of the employer, the employer who says ‘I could not carry out these reasonable adjustments in respect of this particular disabled person’, 21 provides that account should be taken in particular of the financial and other costs entailed, the scale and the financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance. So regard will be hand to the size of the employer, the resources available to the employer, but also the steps that the employer has taken to first of all consider what reasonable adjustments should be made and how these reasonable adjustments could be implemented. And even the extend to which they could be implemented; it may be that not all can be implemented but some can. So it’s not simply a case where the employer can rely on not having financial resources. The employer will need to show that efforts have been taken and for whatever reason the adjustments could not be put in place.
Justification
Now, Article 6 moves on to justification in respect of discrimination arising on grounds of age. And it sets out, if objectively and reasonably justified, by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives and if the means of achieving that aim are appropriate and necessary, the difference in treatment on the ground of age can be justified, which is different from the other protected characteristics, in which direct discrimination can not be justified. So differences of treatment may then include the setting of special conditions on access to employment, vocational training, employment and occupation, the fixing of minimum conditions of age, professional experience or seniority, fixing of a maximum age for recruitment. If these can be objectively justified, the employer is entitled to impose them.
So when will a person qualify as disabled? Definitions that arise.
There is no specific provision about disability, but the question will be whether there is a long term adverse effect resulting from a mental or physical impairment.
When will the duty to make reasonable adjustments be triggered?
Well, once it can reasonably be assumed that the employer is aware of the disability, it’s been brought to the employer’s attention and the individual is suffering a disadvantage by reasonable disability, at that point is there a duty to make reasonable adjustments?
The definition of religion or belief.
Again, this will be particular to the circumstances of the case. In so far as the complainant can rely on religion or belief, both of which in case law have been given wide definition, can then be relied on.
How is sexual orientation defined? When will a person be discriminated on the grounds of age?
These are all key issues that arise in combatting discrimination. And again, how to define the comparator? Is the comparator hypothetical or actual? What about perceived discrimination? Well very importantly, the Directives provide that there shall be no discrimination on grounds of race or on grounds of sexual orientation. They do not set out on grounds of his or her sexual orientation. So that means that first of all it need not to be on grounds of this specific, the characteristic is something specific to the complainant, which is a case of common and actual, that gives that example, but also perceived discrimination, if discrimination arises on the basis that the employer acts in a certain way because that employer assumes, believes or takes the view that the employee is gay, but the employee may not be gay. It does not provide in the Directives that the protected characteristic has to be particular to the complainant. The complainant doesn’t have to be gay to suffer discrimination on the grounds of being gay.
And finally, guidance and evidence.
Again, what are the sort of issues that arise within discrimination cases? What are the aspects to look to in terms of evidence, whether from an employee point of view, an employer point of view or the tribunal or courts point of view? Is there a complaints procedure in terms of the employers commitment to discrimination? Has the complainant brought an internal grievance and is there a record of that complaint? What is the situation in respect of human resources? Again, is there a commitment in terms of human resources being involved in the implementation of equal opportunities in the workplace? Questionnaires, something I referred to early on. Do the questionnaires reveal more about the workforce and the way equal opportunities are upheld? Or do the statistics? have there been past complaints? In respect of the employee, ask for the personnel file. What does the personnel file reveal about that employee’s work history, or how the employer has assessed that employee. And also, are there witnesses to the discrimination? Again, in terms of evidence, are there witnesses to remarks having been made or are there witnesses to treatment of other comparators? Remedies provided for again in terms of declarations of discrimination, compensation, recommendations for future adjustments. Other remedies to consider are mediation between the parties, conciliation, is there a possibility of return to work,is there a possibility of more training for employers and more monitoring and more review of the monitoring.
And finally as a last word, there are certain points, principles if you like, to remember.
Treatment can be unfair, it can be unreasonable, it can be harsh; that will not make it discriminatory. You have to show a difference in treatment in respect of direct discrimination. You have to show a difference in consequence in respect of indirect discrimination.
Discrimination may arise without explicit reference, there may not be a specific reference to ‘you were not promoted because you are black’ or ‘you were not allowed this extra perk because of your sexual orientation’. So it is important to analyse the circumstantial evidence and see what inferences can be drawn.
Intention may feature but it is not a requirement. There may be best intentions, and yet still discrimination arises. A woman can discriminate against a woman. The perpetrator can have the same protected characteristic.
Time limits can be used both ways. They can undermine a genuine concern about a treatment, if it is not raised; did it actually happen or did it actually cause the effect that’s been complained of? And equally the other side of that coin is that it is a very politically sensitive and difficult matter to raise. It may be that the employee was concerned about raising it, concerned about his or her future employment in that particular workplace. So time limits can be used in both ways.
And finally remember we are all different, which should be celebrated, but before the law, there must be equality of treatment.
Thank you very much.
