Framework Employment Directive

This European Union directive required changes to the DDA in 2004. A few further changes are being made by the Equality Act 2010. The directive also 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 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. 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 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 2004 changes 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.

Since the original amendments were made to bring UK legislation into line with the directive, it has now been accepted that some further changes are required. Accordingly some of the amendments being made by the Equality Act 2010 are in order to reflect the directive (see next heading).

Changes being made in the Equality Act 2010

These amendments in the Equality Act 2010 are likely to be formally brought into force in October 2010. However, as regards employment the changes are or may arguably be 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 requires 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. However, the Equality Act 2010 is to introduce new wording to cover this more clearly, and also to go 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 direct discrimination and harassment is covered 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. The Equality Act 2010 is to introduce rules covering this, and again they will not be limited to employment. More on perceived' disability.
Harassment: protection against harassment should probably be broader than is currently set out in the DDA. Again the Equality Act 2010 is making 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 is changing the British justification test to that used in Europe.

Where else may UK law be inconsistent with the directive?

There are other areas not dealt with in the Equality Act 2010 where the DDA - or at least the DDA as it was previously applied - may not give the protection required by the directive. Some of these 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 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...).
Volunteers: There are cases looking at whether volunteers are covered by the Directive to a greater extent than they are already covered by the DDA. This question has yet to be settled. For more, 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?

Interpretation of the DDA: 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 DDA is ambiguous. The Employment Appeal Tribunal has said that even if the DDA 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)
- 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.
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 has not been amended and cannot be interpreted to conform with the directive.
Beyond direct effect: In the 2010 case of Kücükdeveci, the European Court 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.
Amendment of DDA: Where required, Parliament must amend the DDA 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.

What changes were made 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 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:
- 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
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.

Top