Framework Employment Directive

This European Union directive has required numerous changes to UK law. The directive also continues to have important effects on how UK employment tribunals interpret the DDA and Equality Act, and indeed may require further amendments to the UK legislation. The full text of the directive is on the EurLex website.

Broadly the directive applies to discrimination in the area of employment, self-employment, and 'occupation'. It covers discrimination 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 (though it may in fact have direct effect). 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 - and indeed should - be considered by UK courts, where the Equality Act (or DDA) 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, and less fundamental changes in Equality Act 2010. See below Changes already made in British law to reflect the directive.

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 below Where may EU law be influencing UK law now?

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, though there are limits on how far the courts may 're-interpret' UK legislation. See below Where UK law is inconsistent, what happens?

Where may EU law be influencing UK law now?

Meaning of 'disability'

The Equality Act, like the DDA previously, contains a detailed definition of disability. But the definition must not be narrower than in the directive. The UK courts will accordingly take into account decisions of Court of Justice of the European Union on the meaning of disability. (This court was previously known as the European Court of Justice, or ECJ.)

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 those work activities which might not normally be seen as a 'normal day-to-day activity', eg making presentations. The Chacón case 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...).

A further case on the meaning of disability is pending before the EU Court of Justice: Jette Ring v Dansk almennyttigt Boligselskab DAB (link to http://eur-lex.europa.eu), Case C-335/11. It was lodged with the EU court in July 2011.

Volunteers

UK cases have so far held that volunteers are not given any greater protection by the Directive than they have under the DDA and Equality Act. However the main case on this is under appeal and is to be heard by the Supreme Court in 2012. See Volunteers: Does European law extend protection?

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?

Interpreting Equality Act to comply with directive

UK tribunals need to interpret UK legislation "so far as possible" to offer at least as much protection as the directive.

This is not limited to situations where the Equality Act (or former DDA) is ambiguous. The Employment Appeal Tribunal has said that even if the UK statute (the DDA in that case) is clear, wording can be written in to change its meaning; however, the courts cannot change it in a manner which is not "compatible with the underlying thrust of the legislation" or which is "inconsistent with the scheme of the legislation or its general principles." (EAT in Coleman v Attridge Law).

Examples:

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 UK Employment Appeal Tribunal has held that the DDA can and should be interpreted to include direct discrimination and harassment related to someone else's disability in employment cases - see Discrimination by association and perception. (This has been rectified in the wording of the Equality Act 2010.)

Direct effect:

This is relevant where the employer is a public body. Where a directive is sufficiently clear, a UK tribunal should decide the case before it by directly applying the provisions of the directive, ie giving the directive 'direct effect' - even though the DDA or Equality Act has not been amended and cannot be interpreted to conform with the directive.

Beyond direct effect

In the 2010 case of Kücükdeveci, the EU Court of Justice seems now to be saying that where, as here, the directive is giving effect to a general principle of EU law, the national court must if need be disapply any inconsistent provision of national legislation. This is so even in the case of a private sector employer (so no 'direct effect') where it is not possible to 're-interpret' the national law.

Direct application of the directive against a private employer is to be considered further by the EU Court of Justice in Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH v Betriebsrat Bord der Tyrolean Airways Tiroler Luftfahrt Gesellschaft mbH (link to http://eur-lex.europa.eu). The case was lodged with the EU court in March 2011.

Amendment of DDA or Equality Act

Where required, Parliament must amend the UK statute to be consistent with the Directive.

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

Changes already made in British law to reflect the directive

In the Equality Act 2010

These amendments in the Equality Act 2010 were formally brought into force in October 2010. However, as regards employment the changes were or may arguably have been already in effect, as being required by European Union law.

Discrimination by association. In Coleman v Attridge Law (July 2008), the European Court decided that the directive required the DDA to cover direct discrimination and harassment of an employee by reason of another person's disability. UK tribunals have accepted that the DDA must be re-interpreted to have this effect. The Equality Act 2010 uses new wording to cover this more clearly, and also goes beyond the requirements of the directive by applying the principle in areas other than employment, such as provision of services. More on discrimination by association.
Perceived disability. It has been argued - but not as yet established in the courts - that EU law requires direct discrimination and harassment to be unlawful against someone who was mistakenly thought to have a disability. In the context of stammering, this may help if a stammer does not actually have a substantial effect but an employer perceives it to have. From October 2010, the Equality Act has introduced rules covering this, and again the rules are not be limited to employment. More on perceived' disability.
Harassment: protection against harassment under the DDA was probably too narrow. Again the Equality Act 2010 has made changes. More on harassment changes.
Justification: my view was that under European Union law the threshold for "justification" of (indirect) discrimination in employment should have been higher than the threshold used in practice under the DDA. The Equality Act 2010 has changed the British justification test to that used in Europe.

Changes to the DDA in 2004 to comply with the directive

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

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:
- European law and equality: An introduction (pdf) - leaflet from the Equality and Diversity Forum.
- 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
- Handbook of European non-discrimination law - 2011, available to download as a 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 19(1) (previously Article 13) and other European Union measures.

The directive is based on what is now Article 19(1) of the Treaty on the functioning of the European Union (it was previously 'Article 13').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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