New EU measures on non-discrimination and equal opportunities

New EU measures on non-discrimination and equal opportunities

As part of the renewed social agenda the European Commission has announced a new package of measures to prevent discrimination and encourage equality of opportunity in the EU. Among the measures are:

a new directive prohibiting discrimination on grounds of age, disability, sexual orientation and religion or belief outside the employment sphere

the establishment of a group of non-discrimination experts to examine the effectiveness of national and EU level policies and to validate good practice

a programme of work on the inclusion of Roma through existing non-discrimination legal instruments, policy co-ordination mechanisms, and the use of structural funds.

The Commission is also proposing to take action to improve existing EU policy tools. It will:

raise awareness of multiple discrimination issues

encourage mainstreaming of non-discrimination principles across all six grounds in public policy making and legislation at both EU and national levels

encourage better data collection at EU and national levels, particularly in relation to racial and ethnic origin, sexual orientation and religion or belief

encourage Member States to make full use of positive action possibilities to achieve full equality in practice

carry out further awareness-raising, training and promotional activities on non-discrimination and equal opportunities

support the promotion of the business case for diversity and encourage the development of business tools, such as voluntary charters, to encourage better diversity management in the EU.

A new framework directive

The TUC welcomes the proposal for a new directive. Earlier in the year, it was suggested that a new directive should only prohibit discrimination outside employment on the ground of disability. However, trade unions and NGOs successfully campaigned for a new framework directive to cover age, sexual orientation, religion or belief, and disability. As EU law already protection from discrimination outside employment on the grounds of race and gender, the new directive is an important levelling up provision. In the UK, there is already national legislation outlawing discrimination in goods, facilities and services provision on all the grounds except age. However, the Government has recently announced in its statement on the proposed new Equality Bill that it intends to extend goods, facilities and services legislation to cover age.[1]

There is some confusion about the scope of the Directive. The Commission's Communication on the new directive[2] suggests that education and other policy areas such as healthcare and social protection will be untouched by it. For example, it states that 'national traditions and approaches in areas such as healthcare, social protection and education tend to be more diverse than in employment-related areas' and these represent 'legitimate societal choices in areas which fall within national competence'. However, according to Article 3 of the draft Directive education, healthcare and social protection are within its scope. Although Article 3 states that it is without prejudice to national laws on family, marital status and reproductive rights and without prejudice to Member States responsibilities on the content and organisation of education (including special needs education) and access to education based on religion or belief. Article 4(1)(a) provides further protection for current special needs education as it states that the duty to make reasonable accommodation for disabled people should not require fundamental alteration of the education system (n.b. this may unduly restrict the duty on Member States given the importance of education to achieving equality for disabled people).

Exempting specialised education for disabled people conflicts with Article 24 of the UN Convention on the Rights of Persons with Disabilities, which has been jointly signed by the European Community and its Member States and which is cited in Recital 2 of the draft Directive. Article 24(2) requires signatories to ensure that persons with disabilities are not excluded from the general education system on the basis of disability and that they can access an inclusive, quality and free education on an equal basis with others in the communities in which they live.

On family policy, the Commission's Communication explains that the Directive will not require changes to national policies and practices on marital or family status, adoption and reproductive rights. However the draft Directive says that it is without prejudice to national laws governing marital or family status and reproductive rights. There is no specific mention of adoption. Adoption was one of the big political battlegrounds when domestic legislation was introduced in the UK prohibiting sexual orientation discrimination outside employment. It should be noted that the right to protection of family and private life, which is cited in Recital 15 of the draft, does not apply only to those in heterosexual relationships; and the ECJ has recently ruled that where Member States do provide for legally registered same-sex partnerships, there should be equal treatment relative to married persons.

Other policy initiatives

The other policy initiatives announced by the Commission fit with the package of measures that have been announced by the UK Government in its Equality Bill statement, which the TUC has broadly welcomed. For example, the Government intends to introduce a single public sector duty covering all grounds with the aim of mainstreaming equality concerns in policy making and public procurement; it intends to encourage more use of positive action by making it clear in domestic legislation what is possible within EU law; and it will require more reporting of equality data by organisations.

[1] Government Equalities Office, 'A Framework for a Fairer Future'

[2] COM(2008) 420