Future European impact on discrimination.

[Published in 'HRM Professionals Briefing' of Croner@CCH 1st September 2000.]

As the European Commission have acknowledged, ëlegal measures are of paramount importance for combating racism and intoleranceí[endnote 1]. Dr Peter Jepson of Strodes College, Egham, looks at the moves to create legal protection against discrimination.

There is little doubt that, over the last 20 years, European Law has had a significant impact upon discrimination law in the United Kingdom. We have seen how the rights of pregnant women have dramatically changed as a result of EU cases, with the case of Webb v EMO Air Cargo determining that discrimination towards women on grounds of pregnancy is unacceptable. Likewise, EC case law brought about equal pay for work of equal value provisions, with Ms Marshall famously establishing the requirement for full and proper levels of compensation[e2].

This article seeks to examine the future impact of Europe on discrimination law. In particular, I will be looking at the developments that are taking place on race, and seek to establish if this is likely to result in any changes to the Race Relations Act 1976. Brief consideration will also be given to the proposed ëCharter of Fundamental Rights in the European Unioní.

The basis for European legislation in relation to race derives from Article 6 of the Treaty on European Union, which specifies that the EU is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states. Accordingly, member states are expected to respect fundamental rights, as guaranteed by the European Convention for the protection of Human Rights. Further, the right to equality before the law, and protection against discrimination for all persons, constitutes a human right recognised by the Universal Declaration on Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination, to which all member states are signatories.

In keeping with the race and xenophobia principles enshrined in Article 13 of the EC Treaty, the Council of the European Union have introduced a ëEU Race Directiveí ñ i.e. Directive 2000/43/EC, which establishes the principle of equal treatment between persons irrespective of racial or ethnic origins. This Directive is the first major step of the EU with regards to introducing Euro-wide laws to tackle racism and xenophobia. The logic behind the action being both ëpoliticalí ñ in the sense of ensuring the development of democratic and tolerant societies ñ and ëeconomicí ñ in the sense of fostering conditions for a socially inclusive labour market.

Complying with the EU Race Directive

Member states are required to introduce laws so as to comply with the aim and purpose of the Race Directive by the 19th July 2003. Obviously, this requirement will mean that some countries may need to do more than others[e3]. So far as the United Kingdom is concerned, it seems probable that our existing laws ñ in the form of the Race Relations Act 1976 ñ go a long way towards implementation of the Directive. For example, the Directive requires member states to introduce legislation to tackle both direct and indirect discrimination (including harassment) based on racial or ethnic origin. Although the RRA 1976 already fulfils this criterion, it is clear that some adjustments are needed to ensure full compliance with the Directive.

Definition of racial origins

The first thing to note about the Directive is that the definition of race, on face value, is different to that which has been used in the United Kingdom. Article 2 of the EU Race Directive specifies that the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. This expressly excludes nationality[e4] and fails to include a term like ëcolourí, which can be found in s.3 of the RRA 1976 in defining a racial group. However, the exclusion of the term ëcolourí from the EU Race Directive should not be considered a serious omission given the history of the European Court of Justice in interpreting matters through a purposive rather than literal approach.

Direct Discrimination

The definition of direct discrimination, within the EU Race Directive, can be regarded as relatively synonymous with that used in the UK. To clarify, under the Race Relation Act 1976 direct discrimination relates to a person who ëon racial grounds treats another less favourably than he treats or would treat other personsí. By comparison, the EU Race Directive is similarly worded in that direct discrimination shall be ëtaken to occur when 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 originí[e5].

Indirect Discrimination

While direct discrimination provisions display synonymity, it is clear that indirect discrimination is less so. This is because the RRA 1976 uses rather complex wording to make a relatively straightforward point. Indeed, the ërequirement or conditioní, ëcan complyí and ill-defined ëjustificationí provisions with the RRA have caused many a law student to suffer more than a few sleepless nights[e6]. In comparison, under the EU Race Directive, indirect discrimination occurs "where an apparently neutral provision, criterion or practice that puts persons of a racial or ethnic origin at a particular disadvantage can only be objectively justified as a legitimate aim, and means of achieving that aim, if it is considered appropriate and necessary". This is much more specific than the RRA provisions, which can only be regarded as consistent if the courts follow the Bilka-Kalfaus[e7] ëobjectively justified as necessaryí approach of the European Court of Justice. Thus, it is pleasing to report that the Home Office have noted this differential and intend to consult practitioners about the possibility of amending the RRA indirect discrimination provisions.

Burden of Proof

In most legal cases the burden of proving a case rests on the applicant. However, in discrimination law cases this can be problematic due to the fact that the evidence is often in the hands of the defendant and silence on their part would almost certainly destroy any prospect of establishing liability. Consequentially, the EU Race Directive provisions shift the burden of proof to the defendant where a prima facie case is established. In effect this means that, consistent with the definition of the principle of equal treatment in sex discrimination cases[e8], the defendant will effectively be required to disprove discrimination to escape liability.

To many, this may seem to be formalising a process that undermines some core principle of natural justice ñ i.e. a right to silence and innocence until proven guilty. However, it should be remembered that these burden of proof principles do not apply to criminal procedures and only come into play when a prima facie case has been established.

Scope of the EU Race Directive

The Directive is broad in its scope, with its purpose being that of eliminating racial and ethnic - direct and indirect - discrimination in employment, membership of trade unions, social security, healthcare, education and access to the supply of goods and services. It applies to all persons, as regards both public and private sectors, including public bodies. This inevitably means that not only will it be necessary to include the police within the direct and indirect provisions of the Race Relations Bill it may also be necessary to ensure that public bodies, such as charities[e9], fall within the scope of race discrimination laws.

Defence of Rights

The Directive proposes the setting up of bodies for the promotion of equal treatment of all persons without discrimination on grounds of racial or ethnic origin. At first glance, this may suggest that some form of Race Relations Commission should be established in each member state[e10]. It is clear that the EU envisages these bodies could form part of an agency charged, at national level, with the defence of human rights or the safeguarding of individual rights. This suggests a form of encompassing commission that would deal with human rights, sex and race discrimination issues. Given this lead from the EU, it will be interesting to see if the zeal for reform results in some strategic changes within the United Kingdom.

However, defence of rights in the EU Race Directive is not limited to promotion of ideals. Indeed, the Directive will require the UK race laws to be amended so that associations, organisations or other legal entities - which have a legitimate interest in ensuring that the provisions of the Directive are complied with ñ may engage in any judicial or administrative procedure for the enforcement of obligations under this Directive. This could mean that the Commission for Racial Equality, and/or trade unions, could appear and even bodies like the Deputy Board of Jews may have locus standi in any relevant case. The only limitations on this right seem to be that the associations/organisations need to be acting in support of, or on behalf of, the complainant and with his/her approval.

Certainly this could result in some interesting scenarios. For example, a local authority could seek to support a member of the public who has experienced discrimination in the provision of goods or services. Likewise, trade unions could use the opportunity to display solidarity with workers who suffer race discrimination by effectively facilitating the role of complainants ñ who may be nervous about bringing a claim - by being the legal instigator of the proceedings.

Further European Changes in the pipeline

While the EU Race Directive is effectively with us now, there is more to come. The draft Charter of Fundamental Rights of the European Union is at its consultative stage with no doubt much political discussion before it is approved by member states[e11].

Its implications for reform of domestic law are indeed immense. For example, the EU Council proposes that it should deal with a wide range of human rights issues such as freedom of thought, conscience and religion. etc. However, it is Article 21 that is proving to be the most controversial, since it seeks to prohibit discrimination based on grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion Ö disability, age or sexual orientation.

Should this Charter be adopted by the European Union, it seems inevitable that new primary domestic legislation will be needed to prohibit discrimination on grounds of genetic features, sexual orientation, age or religion. No doubt the introduction of such laws will be controversial, with sexual orientation always a topical area. Legislation tackling age should generally be welcomed. However, it is with regards to religion that the temperature is beginning to rise. The Christian Movement is already voicing its concerns that, among other things, it could be a potential threat to religious schools[e12]. The Conservative Party spokesman, Francis Maude, has argued that Britain should veto the Charter, with government sources making clear that Tony Blair had the support of other heads of government in arguing that it should not impose new legally binding obligations[e11].

In conclusion, the Race Directive will have some impact across Europe, with all member states needing to reform their discrimination laws. So far as the UK is concerned, it seems that we already have race laws that implement some 90% of this Directive.

It is the draft Charter of Fundamental Rights that promises to be the most controversial. Whatever the politics of the situation, given that we currently have no prohibitive legislation in the areas of sexual orientation, age, and religious discrimination, it will be seen as a rather meaningless piece of paper should it be signed while failing to impose new legally binding obligations. To this end, it is inevitable that Mr Blair, and other heads of government, may be obliged to perform the customary u-turn.

Dr Peter Jepson.

Sept 2000.

Endnotes:

[e1] www.europa.eu.int/eur-lex/en/com/dat/1999/en_599PC0566.html

[e2] While these cases concerned sex discrimination, they have had indirect impact upon race discrimination laws.

[e3] All member states have laws to combat racist violence and the incitement to racial hatred, and a large number have enacted specific legislation to tackle racial discrimination in certain aspects of employment. However, it seems only Ireland, the Netherlands, and the United Kingdom, have covered areas of everyday life such as access to goods and services and education.

[e4] Because it is dealt with by separate Articles of the Treaty of Rome (in particular Articles 12 and 39) and by existing secondary legislation.

[e5] This is consistent with the ëbut forí test determined in James v Eastleigh Borough Council [1990] IRLR 298.

[e6] Over the years the courts have moved from a reasonably justified condition to a objectively justified as necessary condition.

[e7] [1986] IRLR 317.

[e8] Thus synonymous with the approach taken in OíFlynn v Adjudication Officer [1996] ECR 2417, which is founded upon the provisions of the Equal Treatment Directive 76/207/EEC and the Burden of Proof Directive 97/80/EC

[e9] The government have indicated a willingness to amend the race laws so that the police are not exempt for liability in relation to direct or indirect race discrimination. Further, the Home Office have confirmed to the writer that they are, as a result of the EU Race Directive, considering removing the exemption of Charities from the Race Relations Act 1976.

[e10] With broadly similar powers and functions to that of the Commission for Racial Equality in the UK.

[e11] See ëBlair urged to veto EU rights charterí The Daily Telegraph 1st August 2000. This so called ëurgingí stemming from Francis Maude the Conservative foreign affairs spokesman.

[e12] See ëEuropean Threat to Religious Freedom ñ A response to the European Unionís Employment Directiveí by Colin Hart, Simon Calvert, Mike Judge and published by The Christian Institute.