European Review Issue 36 page 6

After a number of anti-discrimination directives were passed by the EU, Member States were given between three and six years to transpose them into national law. Although in the UK the last provision, on age, has just come into force, Germany has only recently passed the required measures. We look at the problems encountered and the likely effect of the new legislation.

Starting with the directives passed in 2000 against discrimination on the grounds of ethnic origin and for a framework for equal treatment for all in employment, the EU gave countries a maximum of six years to implement a number of new laws. Draft legislation was put forward in Germany in November 2004 but, after opposition from employers and a general election, nothing was done until June this year when the European Court of Justice was threatening to impose a daily fine on the country. Consequently a somewhat hurried process enabled an overarching ‘General Law on Equal Treatment’ to come into force in August. Although a number of technical errors have already come to light the main provisions are clear.
Following the directives, the law forbids discrimination in employment on grounds of race, sex, religion, disability, age or sexual orientation. However it uses the term ‘disadvantaging’ as it was argued in parliament that some discrimination could be to the advantage of the individual concerned. These provisions apply to recruitment, promotion, pay, dismissal, training, union membership, health and social security and education. There are exemptions for religious organisations, positive action for disadvantaged groups as long as no quotas are involved and some differential treatment on age grounds. These include measures to integrate young people or older workers, requirements of age and experience for certain jobs, different redundancy payments according to age and length of service and fixed retirement ages.
Parts of the law may be controversial as seniority is an entrenched part of employment culture in Germany and widespread discrimination on the grounds of sexual orientation is thought to exist. Companies have so far exhibited grudging acceptance of the new legislation while unions welcome it but fear employers will claw back the costs elsewhere.

UK in the wrong on working time regs.

The EU’s court has again found fault with British regulations implementing European directives on working time. A complaint by the union Amicus resulted in the European Commission prosecuting the UK government over the wording of DTI guidance to employers. The directive gives workers the right to 11 hours between working days, a weekend break of at least one day and a twenty minute rest break if they work more than six hours a day. However the guidance says only that ‘Employers must make sure that workers can take their rest.’
Therefore, the judgment concluded ‘employers are not required to make sure that workers do take their rest’ and ruled that the UK had failed to properly implement the directive. General Secretary of the TUC, Brendan Barber called the decision ’ the latest victory in a long line of trade union legal challenges on working time rules for UK employees. Employers will now have to do their utmost to ensure their staff get the breaks they are entitled to’.

The meaning of disability

A case from Spain has seen the ECJ try to define the concept of ‘disability’. Sonia Chacón Navas brought a case against her employers when they sacked her after she had been on sickness leave for 8 months. She claimed that she had been discriminated against on the grounds of disability contrary to the EU directive on equal treatment at work. The court said that while the directive did not define ‘disability’ it had used that term and not ‘sickness’. The fact that the law required employers to adapt accommodation for disabled people showed that a long-term physical, mental or psychological impairment was envisaged. The claim was dismissed.

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