Framework Employment Directive

This European Union directive required changes to the DDA, most of which came into effect in October 2004. However, the directive continues to have important effects on how UK employment tribunals interpret the DDA, and indeed may require further amendments to the UK legislation. The full text of the directive is on the EurLex website.

Broadly the directive covers discrimination in the area of employment, self-employment, and 'occupation', where the discrimination is on grounds of religion or belief, disability, age or sexual orientation. Both direct and indirect discrimination are covered, and there is a requirement to make reasonable accommodation for disabled people.

What is a directive?

A directive is not intended to apply directly in member states. The idea is that member states pass national laws to put it into effect. Accordingly, the UK was required to amend the DDA so far as it did not already give the protection required by the directive. Nevertheless the directive can still be considered by UK courts, where the DDA is ambiguous or fails to implement the directive - see below.

How is the directive relevant in the UK?

Firstly major changes were made to the DDA in order to comply with it. These are summarised further down this page.

Secondly, the directive has an ongoing effect on any areas of UK law and practice which remain inconsistent with it. Even UK tribunals must consider the directive where it is relevant (see further below). In Paterson v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal said broadly that the directive has bound UK courts in employment matters as from October 2004 when regulations implemented it in the UK. Decisions of the European Court of Justice (ECJ) are binding on UK courts as to how the directive should be interpreted.

Where may UK law be inconsistent with the directive?

Some of the areas where the DDA, or at least the way it was previously applied, may not give the protection required by the directive are as follows:

Meaning of 'disability': To date the ECJ has considered this important issue in Chacón Navas v Eurest Colectividades SA (2006). That decision may be particularly useful to UK claimants whose impairment has a substantial effect only on work activities which might not normally be seen as a 'normal day-to-day activity', eg making presentations. It has been cited by the UK Employment Appeal Tribunal in Paterson v Commissioner of Police of the Metropolis to support a decision that a high pressure exam for promotion is a 'normal day-to-day activity'. Future ECJ cases may impact on other aspects of the meaning of disability. (more...).
'Discrimination by association': In Coleman v Attridge Law (July 2008), the European Court decided that in some cases the directive requires the DDA to cover discrimination and harassment by reason of another person's disability. The directive may also require coverage of discrimination by reason of a perceived disability. More...
Protection against harassment should probably be broader than is currently set out in the DDA.
The threshold for 'justification' of (indirect) discrimination may effectively get higher (more...).

Where UK law is inconsistent, what happens?

Those are examples of where UK law or practice may be inconsistent with directive. How can the directive affect the position here?

Interpretation of the DDA: If there is an ambiguity in UK law, UK tribunals need to interpret UK legislation where possible to offer at least as much protection as the directive. This will only be possible if the wording of the DDA is open to an interpretation which is consistent with the directive.
- In Paterson v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal said it would have interpreted the UK definition of disability as it did anyway just looking at domestic law, but that in any event it was bound to reach that interpretation by the European Court decision in Chacón Navas.
- In Coleman v Attridge Law, the Employment Appeal Tribunal held that the DDA could be interpreted to include discrimation and harassment related to someone else's disability. (www.employmentappeals.gov.uk/Public/Upload/06_0417ResfhAMDM.doc).
Amendment of DDA: If the DDA is inconsistent with the directive and cannot be interpreted to conform with it, Parliament must amend the DDA. And even if the DDA can be interpreted consistently with Coleman v Attridge Law to include discrimination by association, it should surely be amended to make that plain.
Direct effect: This is particularly relevant where the employer is a public body. A UK tribunal will sometimes be entitled to decide the case before it by directly applying the provisions of the directive, ie giving the directive 'direct effect' - even though the DDA has not been amended and cannot be interpreted to conform with the directive.

Where the meaning of the directive is unclear, a UK court can ask the ECJ how it should be interpreted.

What changes were made to the DDA to comply with the directive?

Regulations to implement most changes required by the directive came into effect in October 2004. The changes include:

abolition of the exemption for employers with less than 15 employees
DDA extended to cover most occupations previously excluded from its employment provisions, eg police, prison officers, fire-fighters. (more...)
an employer can no longer justify 'direct discrimination'. (more...)

Changes required by the directive in relation to post-16 education came into effect in September 2006.

Generally, the implementation date of the directive was 2nd December 2003. However, 'if necessary a member state had an option to extend this by a further three years as regards disability and age discrimination, in other words until December 2006.

Further information:

External links:
- The EU's Anti-discrimination and relations with civil society
- Article by Richard Whittle published in the European Law Review 27(3): 303-326: "The Framework Directive for equal treatment in employment and occupation: an analysis from a disability rights perspective.", www.leeds.ac.uk/disability-studies/archiveuk/richard%20whittle/uropean%20Directive.pdf
My links page includes some websites relating to new laws under the directive in various European counties.
See my European Union page, on Article 13 and other European Union measures.

The directive is based on Article 13 of the Treaty of Rome (inserted by the Treaty of Amsterdam).The directive is formally called the 'Council Directive establishing a general framework for equal treatment in employment and occupation'. It was passed on 27th November 2000 as Council Directive 2000/78/EC and is available on the internet.

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