BACK TO HOME
PAGE BACK TO HOME
PAGE EUROPEAN REVIEW
As we reported in our last issue new European Union directives on racial discrimination and equality at work are emerging from the legislative process and have to be incorporated into national laws within the next few years. By 2006 at the latest, discrimination law in the UK, which includes the Race Relations Act, the Disability Discrimination Act and the Sex Discrimination Act, will have to be expanded and changed to fit in with the EU initiatives. We examine below how this is likely to be achieved.
While age discrimination will be outlawed from 2006, most of the rest of the EU anti-discrimination package must be implemented by 2003 and with this in mind the British government has already completed the first round of consultation on how to change national law. 'Towards Equality and Diversity' is their document based on submissions from a wide selection of bodies including the CBI, TUC, Age Concern, the Commission for Racial Equality and Lesbian and Gay Employment Rights. While there will be further consultation and the exact form of the new legislation is not set, some preliminary conclusions can be drawn on how the government intends to go about its task.
The new Employment Directive outlaws discrimination on the grounds of sexual orientation; the current Sex Discrimination Act has not included sexual orientation until now, although attempts have been made to establish this with reference to the Human Rights Act. However the EU law only includes discrimination in employment whereas the current national law covers access to goods, facilities and services. Another pitfall which the consultation paper warns of, concerns the definition of sexual orientation; should the law set up a definition of 'heterosexual, bisexual or homosexual' or should this be left to Employment Tribunals so that cross-dressing, for example, could be dealt with ? Then there is the vexed question of equal access to pension rights. The new directive should enable same sex partners to receive the same pension benefits as heterosexual ones but it is not clear if this must be equal to married heterosexuals or only unmarried ones. All these inconsistencies will have to be resolved by the new measures.
The British government states in the consultation paper that the Disability Discrimination Act will be amended by 2004 and many exemptions from this law will have to be removed by then. These include those for small employers, the police, and the fire service as well as restrictions on pensions, performance related-pay and insurance. Some of the biggest changes in both the law and employer behaviour are likely to occur with reference to age discrimination. Recruitment advertising stressing 'young blood' or the need for a 'young, enthusiastic manager' are likely to disappear while, on the other hand, minimum age requirements such as those recently abolished for judges will also go. A likely problem will be compulsory retirement ages and the government seeks advice on whether these should continue to be permitted. Finally the new directives provide a definition of harassment for the first time which the consultation document proposes should be judged by whether 'a reasonable person would have regarded the conduct concerned as violating the dignity of the complainant'.
|
Various versions of the government consultation document 'Towards Equality and Diversity, Implementing the Employment and Race Directives' can be found on the internet at: |
We change our banner headline in this issue in order to cover an important case which was recently adjudicated in the European Court of Human Rights. (ECHR). This body has nothing to do with the EU or the European Court of Justice but has often been resorted to by British trade unions when they feel that a basic principle has been breached and no remedy can be found in the UK. The problem dates back to 1990 when David Wilson, a sub-editor at the Daily Mail, was offered a personal contract which included an increased rate of pay if he signed a clause de-recognising his trade union, the NUJ. Whilst he could remain a member, he felt that he did not want to be unrepresented at work and so refused to sign; he was thus denied the wage increase. The following year Terrence Palmer who worked for Associated British Ports, took up a similar problem with his union, RMT.
Backed by the TUC, the two unions took the cases to an industrial tribunal on the basis that denying the men a pay rise amounted to discrimination against them on trade union grounds. Although the initial judgement was favourable, the case climbed the ladder of English court procedure until the House of Lords, following a change in the relevant law by the then Conservative government, found in favour of the employers. The trade unions and the TUC felt that the English law as interpreted by the House of Lords breached fundamental principles of both the Council of Europe and the International Labour Organisation (ILO), both of which had criticised the UK government. They therefore decided to take their case to the ECHR. In early July the court gave its judgement. The action of the employers, and therefore the UK law that allowed it, was held to be in contravention of Article 11 of its convention which says 'Everyone has the right to join trade unions for the protection of his interests'. They went on 'employees should be free to instruct or permit the union to make representations to their employer. If workers are prevented from so doing the freedom to belong to a trade union becomes illusory'.
The TUC was delighted with the result and called on the government to 'change the law so that workers are able to have their voice heard through their union without suffering worse working conditions'. This they will have to do under the Human Rights Act of 1998 (see issue 16 page 6). And Dave Wilson's comment: 'At moments over the past 12 years, I have thought, why me? But today I feel privileged to have been able to help to protect basic freedoms and strengthen workplace rights'.
|
Back to |
Forward to |
Up to |
Back to |
Back to |
