The Employment Equality Directive

This element of the EAA ensures that both Member States and companies will comply with the regulations established to ensure equal minimal accessibility regulation and standards across the EU and within Ireland.

II. Employment Equality Directive Overview of the Directive and its Implementation

On the 27th of November 2000, the Council of the European Union adopted Directive 2000/78/EC. This directive established a general framework for equal treatment in employment and occupation, known as the Employment Equality Directive.

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The directive prohibits discrimination at the workplace on grounds of religion and belief, age, disability and sexual orientation.

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It explicitly addresses employment and occupation as the Commission regards these as key elements in guaranteeing equal opportunities for all, and as greatly contributing to the full participation of all citizens in economic, cultural and social life.

164 The Directive was

adopted to allow everyone to realise their full potential.165

Before the Employment Equality Directive the rights of people with disabilities were only addressed in Recommendation 86/379/EEC of 24 July 1986

166 and a Resolution on equal

employment opportunities for people with disabilities.167

To close that gap, the new Directive intends to end any direct or indirect discrimination, based on religion or belief, disability, age or sexual orientation.

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Concerning persons with disabilities the Directive expressively stresses the importance to provide measures to accommodate the needs of persons with disabilities in the workplace in order to combat discrimination on the grounds of disability.

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162 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 163 European Commission, ‘The Employment Equality Directive’ Memo (2018) 08/ 69. 164 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, reason 9. 165 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, reason 9. 166 Council Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community [1986] OJ L225/43. 167 Council Resolution 186/02 of 17 June 1999 on equal employment opportunities for people with disabilities [1999] OJ C186/3. 168 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 169 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

The new directive was supposed to be transposed into national law by 1 January 2007 latest for all Member States.

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All Member States have fulfilled that obligation and transposed the Directive into national law.171 As the European legislation only sets out minimum requirements, Member States were free to provide a higher level of protection against discrimination in their national legislation.

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The European Commission considers on a regular basis whether the national laws of the Member States comply with the standards set out in the Directive.

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To enable that, Article 19 of the Directive provides that Member States must report to the Commission. Moreover, the European Parliament published a report on the implementation of the Directive in February 2021.

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In this report they evaluated the factual situation for persons with disabilities and found that they are still largely discriminated against at work, as the Member States have poorly enforced the Directive.

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They therefore filed a resolution expressing the need for a revision of the Employment Equality Directive.

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Important Provisions Concerning Persons with Disabilities in the Directive

The Directive includes some important provisions concerning persons with disabilities. After stating its purpose in Article 1, to lay down a general framework for combating discrimination as regards employment and occupation, the Directive explicitly states its goal to put into effect the principle of equal treatment in Member States. The Directive then defines the principle of equal treatment – meaning the absence of indirect and direct discrimination – and provides a definition of direct and indirect discrimination in its Article 2.

170 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 171 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 172 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 173 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 174 European Parliament Report A9-0014/2021 of 3 February 2021 on the implementation of Council Directive 2000/78/EC <https://www.europarl.europa.eu/doceo/document/A-9-2021-0014_EN.pdf> accessed 20 November 2021. 175 European Parliament Report A9-0014/2021 of 3 February 2021 on the implementation of Council Directive 2000/78/EC <https://www.europarl.europa.eu/doceo/document/A-9-2021-0014_EN.pdf> accessed 20 November 2021. 176 European Parliament Report A9-0014/2021 of 3 February 2021 on the implementation of Council Directive 2000/78/EC, 19 <https://www.europarl.europa.eu/doceo/document/A-9-2021-0014_EN.pdf> accessed 20 November 2021.

One especially key provision for persons with disabilities is Article 5, which states that reasonable accommodation for persons with disabilities shall be provided. It further explains that,

‘this means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned. ’

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A similarly important provision is Article 7, which states that

‘With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.’

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Therefore, the positive actions of the Member States to ensure full equality in practice are not prohibited under this directive, even though they distinguish between persons with or without disabilities.

Problems Arising

While the aim of the directive is unquestionably well-meaning, difficulties have arisen in its transposition and application.

Definition of Discrimination

Firstly, and potentially most significantly, there is no precise definition of discrimination in the directive. Article 2 defines four types of discrimination, direct and indirect discrimination,

177 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, art. 5. 178 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, art 7(2).

harassment, and the instruction to discriminate, but they are quite vague. This means that the Member States are relatively free in their chosen definitions for national law.

In their evaluation of the implementation of the Directive in 2008 the Commission stated that several problems had occurred. Some Member States did not include a definition of discrimination in their national law at all.179 Other definitions of discrimination were found to be incorrect, especially regarding indirect discrimination as they do not cover future or possible events.

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Additionally, definitions of harassment and the instruction to discriminate were found to be too limited,

181 as they do not cover all their possible forms.

Scope of the Directive The Commission also found that some problems arose regarding the scope of the antidiscrimination legislation and exceptions to equal treatment. Article 3 of the Directive states that the directive shall apply to all persons, both working in public and private sectors, including public bodies.

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However, in practice the public sector is still excluded, and so are certain employment relationships of private nature, and autonomous work.

183 Thus, the

personal and material scope of the directive is limited.

The Commission also found that some Member States, like Poland, Italy and Turkey, did not fully implement that key provision concerning the prohibitions against discrimination for persons with disabilities into their national laws.

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Reasonable Accommodation

179 Mark Bell and Lisa Waddington, ‘The Employment Equality Directive and supporting people with psychosocial disabilities in the workplace: A legal analysis of the Situation in the EU Member States’ (European Commission, 2016), 57. 180 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 181 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 182 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, art 3. 183 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 184 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

Article 5 clearly establishes the duty to provide a reasonable accommodation for persons with disabilities, but it does not state that failure to comply with the duty amounts to a form of discrimination. This can be contrasted with the CRPD, which clearly specifies, in Article 2, that denial of a reasonable accommodation amounts to discrimination.

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Thus, there appears to be inconsistency and therefore uncertainty within the directive. Additionally, as not all workers with disabilities are covered by the scope of the directive, Article 5 does not urge all employers to provide reasonable accommodation.

Main issues for victims of discrimination

Additionally, problems have been demonstrated for victims of discrimination seeking to avail of the protections provided for in the directive. State practice is inconsistent, and some states did not fully implement the provisions of Article 9, meaning that they still limit the right of associations to engage in legal procedures to help victims of discrimination.

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The same problem arose in regard to Article 10, as not all national laws reverse the burden of proof in cases of alleged discrimination.

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Some states also lack protection against victimisation in certain sectors, therefore they havenot sufficiently implementedthe provisions of Article 11.

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Definition of ‘Disability’

One major problem within the directive is the missing definition of ‘disability’. This has left the definition open to interpretation and therefore bearing the risk of an inconsistent state practice. The Court of Justice of the European Union decided in 2013 that the concept of ‘disability’ must be understood as

‘a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective

185 Mark Bell and Lisa Waddington, ‘The Employment Equality Directive and supporting people with psychosocial disabilities in the workplace: A legal analysis of the Situation in the EU Member States’ (European Commission, 2016), 41. 186 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 187 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021. 188 European Commission Memo 08/69 of 31 January 2018 on the Employment Equality Directive <https://ec.europa.eu/commission/presscorner/detail/en/MEMO_08_69> accessed 20 November 2021.

participation of the person concerned in professional life on an equal basis with other workers.’

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Still, the judgement left the question unanswered if the directive understands the term ‘persons with disabilities’ as including persons with psychosocial disabilities.

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Implementation in Ireland Ireland had transposed the Employment Equality Directive into national law in 2004 with the amendment of the Employment Equality Act 1998, the Equality Act 2004, and the Social Welfare (Miscellaneous Provisions) Act 2004.

191 The implementation went further than what

Article 5 of the directive called for,192

as it also provides regulations of how ‘appropriate measures’ and ‘disproportionate burdens’ should be interpreted.

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This is important for the practical implementation of the duty to provide reasonable accommodation for persons with disabilities, as it sets out clear guidelines for employers.

However, when drafting the Equality Bill 2004 discussion arose,

194 about the scope of the

directive as it reads

‘employee…does not include a person employed in another person's home for the provision of personal services for persons residing in that home’.195

This means that there is no full duty to provide reasonable accommodation for all persons with disabilities in Ireland, similar to what Article 5 of the directive calls for.

Conclusion

189 Joined Cases C-335/11 HK Danmark v Dansk almennyttigt Boligselskab and C-337/11 HK Danmark v Dansk Arbejdsgiverforening [2013] ECLI:EU:C:2013:222, [38]. 190 Mark Bell and Lisa Waddington, ‘The Employment Equality Directive and supporting people with psychosocial disabilities in the workplace: A legal analysis of the Situation in the EU Member States’ (European Commission, 2016) 36. 191 National transposition measures communicated by Ireland <https://eur-lex.europa.eu/legal-content/EN/NIM/?uri=celex:32000L0078> accessed 20 November 2021. 192 Mark Bell, ‘Pitfalls and Progress: Reasonable Accommodation for Workers with Disabilities in Ireland’ (2018) 41(1) Dublin University Law Journal 77. 193 Employment Equality Act 1998, s 16. 194Question from Proinsias De Rossa to the European Commission (31 March 2004) <https://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2004-1115&language=EN> accessed 20 November 2021. 195 Equality Act 2004, s 3(a).

The European Union targets the needs of persons with disabilities and tries to improve their access to work and consequently their participation in the society. Particularly in the case of the European Employment Equality Directive, it has been shown that through the necessary transformation into national law, there is a risk that the directive will only be inadequately implemented. This exacerbates the vagueness and the other problems that are already apparent in the Directive. Nevertheless, especially through regular evaluation of the implementation, the directive is having an effect, even if only in a limited area of application. The effect of the European Accessibility Act has yet to be seen, as Member States have until June 2022 to transpose it into national law. However, it can already be stated that European legislation regarding persons with disabilities is not entirely sufficient to enable them to fully participate in social life.