Proposals for a new non-discrimination directive

The European Framework Directive is largely limited to the workplace. This page deals with proposals for a new European directive which would apply beyond that, e.g. to provison of services. There has been a UK consultation on it.

The proposal

On 2nd July 2008 the European Commission adopted a proposal for a new directive on discrimination beyond the workplace. It includes discrimination based on disability and other listed grounds. It applies to provision of goods, services and facilities, as well as various other areas.

It is only a proposal, and has a long and possibly rocky road before getting accepted by member states. The Directive will need consent of all member states to be adopted as EU law.

The proposal can be read on the EUR-Lex website. Subsequent drafting suggestions by the EU Presidency are available in Annex A of the UK Government Summary of Responses (link to www.equalities.gov.uk) to its consultation on the proposed Directive. This UK summary of responses was issued January 2010.

Progress

The proposal was discussed on 2nd October 2008 at a meeting of Employment and Social Policy ministers. Their discussions are summarised in a Press Release 2/10/08 - Council of the European Union (link to pdf on EU website). The meeting asked that preparatory bodies "continue to work actively on this file with a view improving the text both from a legal viewpoint and in terms of clarifying the provisions."

On 2 April 2009, the European Parliament backed the proposed directive when it adopted a consultation report by Kathalijne Buitenweg (Greens/EFA, NL) by 360 votes in favour and 227 against. See report on European Parliament website. Also reports on website of Les Verts. and the European Disability Forum.

Drafting suggestions by the EU Presidency have been made public - see link to 'Summary of Responses' under previous heading.

UK aspects

UK Government consultation

The UK published a consultation document on the proposed directive in May 2009, and issued its Summary of Responses (link to www.equalities.gov.uk) to the consultation in January 2010. (See also link to original consultation, on www.equalities.gov.uk).

The UK Government seems to support the directive in principle, but will be looking to have various changes made, as will doubtless numerous other member states.

The Government said in the May 2009 consultation that it did not envisage the directive being transposed into UK law before 2011; and would endeavour to ensure that the timetables for the implementation of the Equality Bill and adopted directive are complementary, minimising costs of compliance. It will also seek to minimise any changes in UK law that may be required as a result of the directive.

Work and Pensions Committee

In a report dated April 2009 the House of Commons Work and Pensions Committee considered the proposed EU directive.

It strongly welcomes the draft directive, but believes the directive must clarify the definition of disability and recommends that the social model should be used (compare its recommendation on UK definition of disability).
Multiple discrimination should be covered.
The Government should also listen to concerns from the business community - without diminishing any of the existing obligations on business.
The Government should anticipate the implications of the draft EU Directive for domestic legislation in the Equality Bill. However, it would not be acceptable to delay the Equality Bill while the Directive is finalised.

Source: paras 267-282 Work and Pensions Committee report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).

Effect of directive in UK

In the UK the DDA already includes services, going well beyond the Framework Employment Directive. Even so, the proposed directive would probably require UK law to be extended in some respects. For example:

The Government is already proposing that the Equality Bill should introduce 'indirect discrimination' into UK law (in place of 'disability-related discrimination') in anticipation of the requirements of the directive.
The proposed directive requires harassment to be covered. Again this is in the Equality Bill.
Article 8 of the proposed directive requires that the burden of proof shift to the person alleged to have discriminated if facts are established from which discrimination may be presumed. In the UK this currently applies in an employment context. However it is proposed in the Equality Bill to extend this to goods, services and facilities, and to education.
Under Article 4 of the proposed directive there seems to be both an anticipatory duty to take measures to make services etc accessible, and also a duty to make reasonable accommodation if needed in a particular case. Under the current UK law on services for example, there is already an anticipatory duty to make reasonable adjustments. However, there is only an individual reasonable adjustment claim if there is a breach of the general (anticipatory) duty - there may perhaps need to be technical changes here.

Campaign for new directive

Disability groups have been campaigning for some years for the introduction of more comprehensive disability discrimination legislation at an EU level. Legislation in many other European countries is not as comprehensive as that in the UK (see above), and protection in the UK is more limited for some of the other grounds, such as age, covered by the proposed directive.

The European Disability Forum (EDF, www.edf-feph.org) signed up well over 1 million people to its petition to introduce EU-wide disability legislation. Its www.1million4disability.eu website now includes a letter to signatories about the new proposal by the European Commission, and EDF's detailed position paper (September 2008). The EDF argues that the existing proposal needs improvement. The main EDF website also has a campaign page.

Existing European legislation?

Could existing European legislation already cover some of this ground? The revised European Social Charter, ratified by some member states (though not the UK), has been interpreted as requiring the existence of non-discrimination (or similar) legislation in fields such as housing, transport, telecommunications, cultural and leisure activities.

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