EU Referendum Briefing 6: A Bonfire of Rights? EU Employment and Equality Law after Brexit

Professor Steve Peers

It’s been suggested that there would be a ‘bonfire of rights’ if the UK left the EU – in particular rights relating to employment and equality. As a response, some have suggested that the EU has nothing to do with employment and equality law in the UK – that all such rights are actually home-grown.

As I will demonstrate in detail in this blog post, it is undeniably the case that EU law has significantly raised the level of employment and equality rights in the UK – particularly as regards equality for women in the workplace.

My study of all the cases reaching the EU court concerning UK law on these issues shows that 60% of all the EU court cases about equal treatment of women in Britain resulted in a finding that UK law breached EU law – therefore raising the standards of protection for women in the workplace. 62% of the other cases on workers’ rights led to the same result.

As for what would happen in the event of Brexit, we cannot be absolutely certain – but a large number of the most prominent supporters of Brexit have admitted in detail their intention to lower those standards.  

I’ll first summarise the main points, and then set out the facts in detail.

Summary

The EU has not set uniform standards on every aspect of employment and workplace equality law – and it never will.  Its role, according to the Treaties, is to set minimum standards in certain areas of employment and equality law. So where the EU hasn’t acted at all – such as on zero hours contracts, trade union laws or minimum wages – Member States can do as they like. The blame (or credit) for the choices which the UK makes on those issues must go entirely to this country’s government.

On the other hand, where the EU has acted – such as on holiday pay and equality in the workplace – Member States can set higher standards, but not lower ones. The EU rules in effect set a floor below which Member States can’t go; but there is no corresponding ceiling.

It’s been argued during the referendum that because the UK has sometimes adopted laws on certain employment or equality issues before the EU did, the EU therefore added nothing. This argument profoundly misunderstands the law in this area. Just because the UK put the Equal Pay Act on the statute books before it was covered by EU laws on equal pay for men and women doesn’t mean that those EU laws had no added value. That’s because British laws in this area have often contained many exclusions or exceptions, and EU law has often removed them.

In this blog post, I prove that point by looking at every single ruling of the EU court concerning UK law on employment or equality issues. As I noted in the introduction in 60% of cases, regarding women’s equality at work, and 62% of other workers’ rights cases, UK law fell below EU standards.

In practical terms, this increased protection regarding (among other things): equal pay for work of equal value for women; protection at work during pregnancy and maternity leave; better protection of pensions when an employer goes broke; and extension of paid holidays to include more workers.

However, a significant number of the relevant laws have been targeted for removal by serious supporters of Brexit.

In conclusion, European Union law has significantly increased the level of protection in a number of areas of employment and equality law. Leaving the EU would not automatically mean that those protections are lost, but they would no longer be guaranteed – and many of the most senior figures supporting Brexit have expressed their intention to remove some of them.

Detailed analysis

The following analysis looks at (a) the main features of EU involvement in employment and equality law; and (b) the prospect of the rules stemming from EU law being repealed after Brexit.

Mainly the EU’s impact in this area has been in the form of laws that set minimum standards on some workers’ rights issues, and on discrimination against workers on some grounds. EU law also bans discrimination outside the workplace on grounds of sex or race. In a lot of these areas, the UK had its own laws beforehand. For instance, the Race Relations Act dates back to 1965. However, there have been some areas where UK law changed because of a new EU law which the UK implemented, or because of a ruling of the EU courts, or the UK courts interpreting EU law. A complete list and summary of all the relevant EU court cases is set out in the Annex. Some of the key cases are discussed further in the main part.

While some argue that the rights concerned anyway derive from Conventions (international treaties) agreed within the framework of the International Labour Organisation (ILO), ILO treaties are not enforceable in British law. The very fact that the EU court has ruled on UK breaches of EU employment and equality law proves that the existence of ILO treaties does not by itself guarantee employment or equality law protection in individual cases.

Employment law

The EU does not deal with every employment law issue. In fact, it can’t. The EU treaties rule out any EU laws on pay or trade union rights. So there are no EU laws on those issues, although in some cases the EU has an indirect impact on these topics.  There are also some areas where the EU could act if all Member States agreed, such as rights on the termination of employment. But it is hard to reach unanimous agreement on employment law issues, and so there are few laws in these areas either.

What topics does EU law address? First and foremost, there are a number of EU laws on health and safety. The most prominent of these is the law on working time, which guarantees a minimum amount of four weeks’ paid holiday. Although the UK had a law in force on this issue before the EU law, it did not guarantee paid holidays for all workers. The EU court case law has specified in particular that the UK has to ensure paid holidays for fixed-term workers (BECTU), and to include allowances (Williams) and commissions (Lock) in holiday pay.

Next, there are EU laws on major changes to workers’ employment contracts. In particular, there are EU laws on three issues: rights in the case of mass redundancies; rights when an employment contract is affected by the transfer of the employer; and rights when a business goes broke.

The mass redundancies law doesn’t ban or limit the grounds for redundancies, or provide for rules on redundancy payments – so the UK and other EU countries can regulate those issues however they want to. First and foremost, this law it sets out a waiting period before large numbers of redundancies can be made, once the employer has decided in principle to make a lot of its workers redundant. The employer must give a detailed explanation of its plans to the workers who are set to lose their jobs. During the waiting period, the workers’ representatives and the employer must hold discussions with a view to helping as many affected workers as possible, for instance by saving jobs or retraining. If the employer fails to do this then there must be some form of sanction.

The EU court has ruled that the UK had not applied this law properly when it said that employers only had to consult the workforce when there was a trade union recognised by the employer. This was a breach of the EU law because that law required workers to be consulted about mass redundancies whether there was a trade union representing the workforce or not, and whether the trade union was recognised by the employer or not. Also the UK had not provided enough of a sanction for employers who breached the law. While employers were in principle subject to a fine for breaking the law, they could deduct it from the redundancy payments which they had to pay to workers anyway.

If a business goes broke, EU legislation provides that a minimum amount of workers’ back pay which may be owing at the time of insolvency has to be guaranteed. This law also requires a basic protection of occupational pensions where businesses go broke. The key EU court case of Robins said that the UK was not doing enough to protect pensions in such cases. British law was changed as a result.

Another issue addressed by EU law is so-called ‘atypical work’. This refers to work which is different from the traditional full-time open-ended contract with one employer. In particular, there are different EU laws for three types of atypical work: part-time work, fixed-term work and agency workers. There are no EU laws on ‘zero-hour’ contracts or internships, however.

Basically these EU laws say that the atypical workers who are covered by them should be treated equally with regular employees as regards their pay and conditions. Also, employers should make it easier for part-time workers or agency workers to join the regular workforce, and for full-time workers to switch to part-time work if they wish.  For fixed-term workers, there must be limits on the number of times a contract can be renewed over and over, to protect against exploitation.

Finally, another issue addressed by EU laws is worker consultation and information. There is both a general law on worker consultation and information in large companies, and a specific set of rules of ‘European works councils’, which applies to multinational companies with over 1000 employees across the EU. These laws allow the employers and the workforce to reach alternative arrangements if they wish. There are no EU rules requiring small businesses to inform and consult their workers, except in the special case where the employee contracts are transferred.

Discrimination law

There are EU laws banning discrimination on six grounds: sex, race, age, disability, religion and sexual orientation. The laws on sex and race discrimination go beyond employment, and also ban sex or race discrimination in access to goods or services, like insurance. However, the laws on the other four grounds only extend to discrimination in employment.

These laws ban direct discrimination, ie discrimination purely based on someone’s age, race, sex, etc. However, they also ban indirect discrimination: unequal treatment for another reason, but which mostly affects people of a particular age, sex, etc. For instance, unequal treatment of part-time workers will affect both male and female workers, since there are some men working part-time. But it mostly affects women, since they make up the majority of part-time workers. So it would be an example of indirect sex discrimination, although since the adoption of an EU law devoted to the issue of part-time workers (see above in this chapter), the sex discrimination angle is no longer as relevant.

 

How do these laws affect the UK? As noted above, the UK usually had laws on these issues before the EU did. However, the EU laws have had an impact on some of the details that are important to large numbers of individual cases.

Looking at the case law of the EU court, there have been important rulings which improved UK standards in particular on:

equal pay for work of equal value;

prohibiting the dismissal of women earlier than men due to retirement age difference;

effective remedies (removing the cap on damages for sex discrimination);

dismissal due to pregnancy;

equal treatment after returning from maternity leave; and

dismissal of transsexuals.

Effect of Brexit

Leaving the EU has no automatic effect on employment law. But a number of Brexit supporters, including cabinet ministers like the employment minister, have specifically stated that they want to use the opportunity that Brexit would create in order to remove protections guaranteed by EU law.

In particular, in their own words, they aspire to scrap the laws on:  collective redundancies; atypical workers; working time (including paid holidays); driving time limits for the self-employed; rights for pregnant workers and women on maternity leave;  and worker consultation rights.

For his part, Nigel Farage has argued that women who have children are ‘worth less’ to an employer.

It should be noted that changes like these would not even have to go through as an Act of Parliament – Vote Leave supporters plan to fast-track the abolition of EU laws after Brexit.

Conclusion

As we have seen, EU law has had a demonstrable impact on UK employment and discrimination law. It is not the source of all UK law but it definitely provides protection which would not otherwise exist in certain areas, such as holiday pay and equality for women in the workplace. It is highly likely, based on the expressed intentions of senior supporters of Brexit, that there would be a ‘bonfire’ of some of these rights after Brexit.

Further reading:

Analyses of EU effect on UK employment law by:

Sean Jones, employment law QC

Martin Ford, employment law QC

EU employment law legislation

EU sex equality legislation

Other EU equality legislation

EU Court website

Barnard & Peers: chapter 20

Photo credit: jerseyeveningpost.com

Annex

EU court cases: UK employment and equality law

The following is a list of all EU court cases involving UK employment and equality law. I have grouped them by topic and indicated for each case what the subject matter was, and whether the UK law was in breach of EU law or not in each case.

Equality at work – 32 breach, 23 no breach: breach of EU law in 55% of cases

(Sex equality: 32 breach, 21 no breach: breach in 60% of cases)

Burton – no breach – sex discrimination – voluntary redundancy

Garland – breach – art 119 – after-work benefit

Jenkins – breach – art 119 – part-time work

Worringham – breach – art 119 – pension contributions

McCarthys – breach – art 119 – previous employee

Commission v UK – C-165/82 breach – sex discrimination - private household, small business

Commission v UK – C-61/81 breach – art 119 – job classification

Johnston – breach – sex discrimination – women on police force

Marshall – breach - sex discrimination – dismissal at retirement age

Roberts – no breach – pension age sex discrimination

Newstead – no breach – pension contributions

Drake – breach – social security directive

Clark – breach – social security directive

Barber – breach – art 119 and occupational pensions 

Foster – breach - sex discrimination – dismissal at retirement age

Johnson – no breach - social security directive

Jackson and Cresswell – no breach – income support and sex discrimination

Ex parte EOC – no breach - social security contributions

Smithson – no breach – social security and housing benefit

Neath – no breach - actuarial benefits and occupational pensions

Thomas – breach – social security and invalidity pension

Marshall II – breach – limits on compensation for sex discrimination

Coloroll – breach - occupational pensions

Enderby – breach – Art 119

Birds Eye – no breach - occupational pensions

Bramhill – no breach – social security

Johnson – no breach – social security

Smith v Avdel – breach - occupational pensions

Webb – pregnancy dismissal – breach

Gillespie – art 119 and maternity leave – no breach

Graham – social security – no breach

P v Cornwall CC – transsexual dismissal – breach

Richardson - social security – breach – prescription charges

Atkins - social security – bus concessions - no breach

Meyers – sex discrimination and family credit – breach

Sutton – social security and interest – no breach

Magorrian – art 119 – breach – time limits

Levez – sex discrimination – breach – remedies

Grant – sex discrimination – no breach re sexual orientation

Boyle – pregnancy – breach in part

Brown v Rentokil – pregnancy dismissal – breach

Sirdar – women in military – sex discrimination – no breach

Coote – sex discrimination – breach - remedies

Seymour-Smith – sex discrimination – no breach

Preston – sex discrimination – breach

Hepple – social security – no breach

Taylor – social security – breach – winter fuel

KB – transexuals and pensions – breach

Allonby – equal pay – (mostly) no breach

Alabaster – maternity leave and pay rise – breach

Cadman – art 119 – no breach

Richards – transsexual and pension - breach

Coleman – disability discrimination – breach

Age Concern – age discrimination – no breach

CD – surrogate mothers and maternity leave – no breach

Employment law: 13 higher standards, 7 no breach, 1 lower standard: 62% higher standard

Comm v UK – breach – collective redundancies

Comm v UK – breach – TUPE

Everson – insolvency – breach

Allen – TUPE – breach

BECTU – working time and fixed-term work – breach

Bowden – working time and transport work – no breach

Martin – TUPE and early pensions – breach

Celtec – TUPE and transfer date – breach

Robinson-Steele – working time and ‘rolled-up’ holiday pay – breach

Comm v UK – working time – breach

Comm v UK – health and safety – employer liability – no breach

Robins – insolvency and pensions – breach

Stringer – working time and sick leave – partial breach

Williams – working time and allowances  - breach

Nolan – collective redundancies and US airbase – no breach

Alemo-Herron – TUPE – breach (but case in favour of employer)

Lock – working time and commissions – breach

Lyttle – collective redundancies – no breach

USDAW and Wilson – collective redundancies and Woolworths – no breach

O’Brien – part-time work – breach

Greenfield – part-time work – no breach

Viking Line – trade unions and freedom of establishment – not included in stats; case left to national court to decide, then settled

Violence against women: what will be the impact of the EU signing the Istanbul Convention?

Steve Peers

The scourge of violence against women is a serious human rights abuse and the worst form of sex discrimination. Several years ago, the Council of Europe (a body different from the EU) drew up the Istanbul Convention on this issue. It came into force in 2014, and currently applies to 20 countries, including 12 EU Member States (for ratification details, see here). Today, the EU Commission proposed that the EU sign and then conclude the Convention. What practical impact will that have on violence against women?

If the EU does sign and conclude (ie ratify) the Treaty, it will be the second human rights treaty binding the Union. The first is the UN Convention on the Rights of Persons with Disabilities. While most attention has been focussed on the EU’s attempt to accede to the European Convention on Human Rights (ECHR), which was essentially thwarted by the EU’s Court of Justice (CJEU) in 2014 (as discussed here), the EU’s capacity to sign up to other human rights treaties is also relevant. While the EU cannot sign up to older international human rights treaties, like the UN Covenants, because they are only open to States, newer treaties (like the Istanbul Convention) expressly provide for the EU to sign up to them – if it wishes.

Impact of EU ratification

Like many international treaties, the Istanbul Convention is a ‘mixed agreement’, meaning that (if the EU ratifies it), the treaty will bind both the Union and its Member States. EU ratification should have six main effects (I’ve updated this list from the previous post on the reasons why the EU should ratify).

First of all, the EU’s ratification of the Convention could provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe. It should be noted that the treaty is open for signature to non-EU countries: the 19 Council of Europe countries not in the EU (8 of them have ratified it already), as well as the 4 non-European countries (plus the Holy See) which took part in drawing it up.

Do you live in a country which hasn’t ratified the Convention? You can sign up to a campaign for the UK to ratify the Convention here. Please let me know of any other campaigns in the UK or any other country, and I’ll list them with a link in an Annex to this post.

Secondly, ratification could, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that Member States, would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to urge any countries to do so?

Thirdly, ratification of the Convention should enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation. While there’s no general EU criminal law on violence against women (on the case for such a law, see here), there are other relevant EU rules. In particular, the Commission proposal refers to EU free movement law, substantive EU criminal law relevant to violence against women, EU immigration and asylum law, and the EU law on crime victims’ rights, applicable from last autumn (on the content of the crime victims’ law, see discussion here). It should also mean that the Convention will already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence. The proposal is based on EU competence over victims’ rights, and would apply (if agreed) to every Member State covered by the crime victims’ law – meaning every EU country except Denmark.

In practical terms, that should mean that (for instance), EU law must be interpreted to mean victims receive a residence permit based on their personal situation, if the authorities consider it necessary (Article 59(3) of the Convention). That would apply to citizens of other Member States and their (EU or non-EU) family members, in all 27 Member States covered by the proposal. It would also apply to non-EU citizens in general, in the Member States which apply EU law on non-EU migration (ie the 25 Member States other than the UK, Ireland and Denmark, which have mostly opted out of such laws).  

For asylum cases, Article 60 of the Convention makes clear that gender-based violence is a ground of persecution. This is more explicit than the EU’s qualification Directive, which says that ‘gender-related aspects shall be given due consideration’, with further reference in its preamble to specific practices like genital mutilation. (Note that the UK and Ireland are covered by the first-phase qualification Directive, which has less precise wording on this issue; so the EU’s ratification of the Convention might have more influence in these countries).

As regards victims of domestic violence crimes (of any nationality and residence status), Chapter IV of the Convention, concerning support and protection, could in particular have an impact on the interpretation of the crime victims’ Directive in each Member State.

Fourth, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this could promote a uniform interpretation of those provisions within the EU.  

Next, the relevant provisions of the Convention will be more enforceable if the EU ratifies it. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

Conclusion

For all the above reasons, the EU’s planned ratification can only be welcomed. It may not, by itself, prevent any act of violence from being committed, but it may accelerate a broader process of ratification (and corresponding national law reform) on this issue. And it may have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter II:4, chapter I:5

Slipping through our fingers: the CJEU rules on the value of parenthood in EU law

Steve Peers

The vast bulk of EU legislation and case law on sex discrimination aims to facilitate women’s access to employment, and their equal treatment within the workplace. Yesterday’s CJEU ruling in Maistrellis approaches these issues from an unusual angle: the access of a father to parental leave, in a case where the mother of his children was not working or seeking paid work at all. The judgment raises interesting questions about the role that EU employment and discriminaton law plays in family life. 

Background

EU rules on parental leave date from an agreement of social partners in 1996, which was updated in 2010. This case concerns the 1996 version of the agreement, which begins by stating the social partners’ intention: ‘reconciling work and family life and promoting equal opportunities and equal treatment between men and women’. The preamble refers to the work/life balance point (paragraph 4) and the promotion of ‘women’s participation in the labour force’ (paragraph 7). It also states that ‘men should be encouraged to assume an equal share of family responsibilities’. 

  

The main text of the agreement makes clear that it sets out only ‘minimum requirements’. It applies to ‘all workers, men and women’, who have an employment contract or relationship as defined by national law. It gives ‘men and women workers an individual right to parental leave’ on the birth or adoption of a child, for at least three months, up to an age (up to 8) to be defined by Member States or social partners. ‘To promote equal opportunities’, the right should be non-transferable.

Detailed rules on parental leave must be defined by national legislation and/or collective agreements, as long as those rules meet the minimum requirements in the Directive. These rules can: decide if parental leave is granted on a full-time or part-time basis; set out a waiting period of up to one year of employment; adjust the rules to the particular circumstances of adoption; establish notice periods to be given to the employer; define when the employer can postpone parental leave; and ‘authorise special arrangements’ for small businesses.

Furthermore, the agreement specifies that workers who apply for or take parental leave are protected from dismissal on those grounds. They have the right to return to the same job (or a similar job, if that’s not possible) at the end of the parental leave. Parents also retain any rights which they acquired before the parental leave began, although it’s up to national law or employers to determine whether parents are paid during their leave period. All social security issues are left to national law. Finally, workers are also entitled to time off from work for ‘urgent family reasons’, although the details and limits on this right are left to national law and social partners to determine.

Judgment

The father in this case was a Greek judge, who sought to exercise parental leave for a paid period of nine months. In practice Greek law curtailed this benefit in two ways: first of all by limiting it to mothers only; and secondly (in a rather contradictory manner) by attaching strict conditions as regards fathers, which didn’t apply to mothers. If a mother stays at home to look after the child (as in this case), a father could only obtain the leave if the mother was unable to look after the child due to illness or injury. The Greek courts had already ruled that the first limit was inapplicable, and now asked the CJEU if the second limit breached EU law.

According to the CJEU it did, for two reasons. First of all, it breached the parental leave agreement, because that agreement states that parental leave is an ‘individual right’ which is ‘non-transferable’. Therefore (reiterating prior case law) it applied to each parent. The possible limits referred to in the Directive make no provision for denying parental leave based on the employment status of the spouse. This literal interpretation was reinforced by the overall context of the agreement: obtaining a better work/life balance, and encouraging men to take on more family responsibilities. The right to parental leave also appears in the EU Charter of Fundamental Rights.

Secondly, the Greek rule also violated the EU Directive on sex discrimination in employment. That was because parental leave was a working condition, and the position of men and women was ‘comparable’ as regards bringing up children. The Greek law attached a condition to fathers that it did not attach to mothers, so constituted sex discrimination.

Furthermore, this distinction ‘is liable to perpetuate a traditional distribution of the roles of men and women by keeping men’ in a ‘subsidiary’ role as regards parenting. While the Directive does provide that it is ‘without prejudice’ to the parental leave agreement and the pregnant workers’ Directive, the ‘deprivation’ of a father’s parental leave ‘in no way’ helps the health and safety of pregnant workers or new mothers, which is the purpose of the latter Directive.

Comments

First of all, it should be noted that Greek law, for at least some workers, far surpasses the minimum rules in the agreement – nine months’ paid leave, rather than three months’ unpaid leave. Very few parents in the EU will have access to this generous a parental leave – even the two weeks of paid leave which I enjoyed for each child is better than many fathers get. Indeed, the EU’s pregnant workers’ Directive only requires new mothers to get 20 weeks’ maternity leave on sickness pay (not full pay) as a minimum (note that parental leave applies in addition to maternity leave). It’s doubtful that the EU economy as a whole could withstand such generosity, and indeed I wonder if the Greek benefit has since become rather less generous due to the demands of the Troika.

So it’s important to emphasise that the CJEU is not requiring all employers to give fathers nine months’ fully paid leave for each child. Rather, whatever the period of parental leave (which need not even be paid), it cannot be subject (for fathers) to conditions relating to the mother’s employment status.

The judgment has several interesting implications. First of all, while the CJEU has traditionally ruled that EU sex discrimination law cannot apply to same-sex couples (see the Grant judgment), it’s arguable that the parental leave agreement can. While that agreement does refer to ‘men’ and ‘women’, the Court’s emphasis on parental leave as an individual right, and the EU Charter ban on discrimination on grounds of sexual orientation, points in favour of it applying to same-sex parents. Although it would be possible to use the EU’s framework equality Directive to challenge a limitation on parental leave based on sexual orientation, it’s possible that parental leave is being limited on a basis other than sexual orientation. In any event, a gay or lesbian parent may prefer to invoke rights as a parent. Having said that, it should be noted that the civil status of same-sex couples (ie access to marriage), is, as EU law currently stands, a matter for Member States to decide (for more on this, see Alina Tryfonidou’s recent blog post). This must equally apply to adoption.

Secondly, the ruling is similarly relevant to any family that does not take the form of two married parents. It must follow from the Court’s ruling that it’s irrelevant whether the parents are unmarried, or whether the parental leave right is being claimed by a single parent. Again, it should be pointed out that EU law doesn’t determine who has custody of a child – at most, it determines which court has jurisdiction to rule on this issue where there is a cross-border element. 

  

Thirdly, while the ruling implicitly extends the parental leave agreement to such non-traditional families, it explicitly confirms its application to the most traditional form of all: families with a stay-at-home mother. As noted above, EU sex discrimination law has its own tradition, constantly aiming to encourage mothers to work. Yet in this case, the Court skipped over the many references to this objective in the relevant EU laws, and asserted instead the father’s individual right to parental leave as well as his right to non-discrimination on grounds of sex.

Reading the case more carefully though, the judgment does challenge the traditional family model in a different way: not by encouraging mothers to return to work (although of course this is still relevant in most other cases), but by encouraging fathers to help them at home. Thirty years ago, the Court was concerned (in its Hofmann judgment) that EU law should not 'alter the division of responsibility between parents', as regards gender roles in the household. Now it’s concerned to make sure that those roles are shaken up.

It’s surely true to say that equality between men and women can’t be achieved without challenging those roles. Yet it’s interesting that in this judgment, the Court wants those roles to be challenged even if there’s no link with the mother’s employment. In this vein, the Court’s assertion that equal treatment as regards parental leave will not undermine the health and safety of new mothers is the understatement of the year: what new mother wouldn’t welcome the assistance of the baby’s father for even a short period, never mind nine months? But this approach subtly alters the purpose of the pregnant workers’ Directive, which is about employed mothers, not those who stay at home. Of course, the Court’s interpretation is entirely justified on social grounds: new mothers can use the help of fathers whether the mothers are employed or not.

Finally, the Court’s ruling implicitly emphasises the value of strengthening both parents’ ties with their children, regardless of any link with the mother’s employment. It’s a good time to reaffirm this link, as parents across EU (including the Court’s staff) brace themselves for the start of summer holidays. For parents, this is an unavoidable and poignant reminder that our babies grow up, our little ones get bigger, and the time we spend with them is always slipping through our fingers.

Barnard & Peers: chapter 20

Photo credit: activebabiessmartkids.com.au

Forty percent Venus, sixty percent Mars? The Commission’s Proposal on gender quotas in corporate boards

Juan Carlos Benito Sánchez, LL.M. Candidate at KU Leuven — Twitter @jcbensan

Economic decision-making in the European Union suffers at the highest corporate echelons from a lack of diversity, particularly in the area of gender diversity: over half of the graduates from European universities today are female, yet men outnumber women in corporate boards by a ratio of nearly four to one. What is more, differences between Member States are vast: female representation among directors ranges from less than five percent in some countries to more than thirty percent in others. The latest statistics can be found at the site of the European Commission’s database on women and men in decision-making.

Acknowledging this reality and within the framework of the Women’s Charter and the Strategy for Equality between Women and Men 2010-2015, the European Commission launched in November 2012 its Proposal for a Directive  of the European Parliament and of the Council on improving the gender balance among non-executive directors of companies listed on stock exchanges and related measures.

The Economic and Social Committee and the Committee of the Regions having both issued opinions, the proposal was adopted by the European Parliament at first reading in November 2013. In December 2014, however, the Council (Employment, Social Policy, Health and Consumer Affairs configuration) rejected  the proposal because of a failure to reach an agreement, inviting the preparatory bodies ‘to continue their work on the file.’ The latest development came in the form of a progress report  issued on 11 June 2015, concluding that

[t]here is a broad consensus among the Member States in favour of taking measures to improve the gender balance on company boards. While a large number of Member States support EU- wide legislation, others continue to prefer national measures (or non-binding measures at the EU level). Thus further work and political reflection will be required before a compromise can be reached.

Main contents of the proposal

The Proposal for a Directive (as considered by the Council), which ‘seeks to achieve a more balanced representation of men and women among the directors of listed companies by establishing measures aimed at accelerated progress,’ only targets publicly listed companies having their registered office in a Member State and excludes SMEs from its scope of application. It is expected that a trickle-down effect will ensue, thereby leading companies not affected by these measures towards more balanced corporate boards.

Targeted companies should attain by the predetermined deadline (31 December 2020) either (a) 40 percent of members of the under-represented sex among non-executive directors or (b) 33 percent of members of the under-represented sex among all directors, both executive and non-executive. The choice of option is in principle open to the implementing Member State, which may also exempt those companies where women represent less than ten percent of the employees from compliance with the numerical aims. An additional obligation is envisaged for targeted companies to set individual quantitative gender balance objectives when the overall thresholds do not directly apply.

A reporting duty to the national equality bodies has been introduced, following the ‘comply-or-explain’ principle. A document must be compiled detailing the ‘gender representation on [companies’] boards, distinguishing between non-executive and executive directors’ as well as ‘the measures taken with a view to attaining the applicable objectives.’ The same information shall be published in an appropriate and accessible manner on the companies’ websites.

The core of the proposal lies on the series of procedural requirements imposed on companies which fall short of the planned numerical objectives. These companies must, when selecting candidates for director positions, undertake a comparative analysis of the qualifications of each candidate by applying clear, neutrally formulated and unambiguous criteria established in advance. They shall, following this analysis, give priority to the candidate of the under-represented sex, unless an objective assessment of all criteria specific to the individuals tilts the balance in favour of the other candidate(s). The wording of these requirements is directly drawn from the case-law of the CJEU regarding gender quotas (see, inter alia, Judgments in Kalanke, in Marschall v Land Nordrhein Westfalen and in Abrahamsson and Anderson v Fogelqvist.)

Upon request from any candidate, all parameters considered when deciding over selection (the qualification criteria, the objective comparative assessment and, where relevant, the considerations tilting the balance) need be disclosed to her or him in a transparent manner. Moreover, if the candidate of the under-represented sex establishes a prima facie instance of discrimination, the burden will shift onto the respondent company to disprove those allegations—as occurs with other discrimination claims under EU law.

Sanctions are to be imposed by the Member States alone for the infringement of the procedural requirements, the reporting obligations or the mandate to set individual quantitative objectives. In other words, non-compliance with the numerical quota objectives by the end of the established deadline is not per se penalised beyond requiring companies to state ‘the reasons for not attaining the objectives and a description of the measures which the company has already taken and/or intends to take in order to meet them.’

The Union’s intervention in the field has an essentially temporary character; the ultimate objective of the proposal being to foster gender diversity within corporate boards to the extent that conditions in society are such as to not guarantee that balance on their own. This interim approach is reflected by the sunset clause contained in the proposal: the directive shall expire in December 2029. As a last point, it is notable that the directive would only effect minimum harmonisation, thus allowing Member States to go beyond these measures ‘provided those provisions do not create unjustified discrimination or hinder the proper functioning of the internal market.’

The flexibility clause: a point de discorde

Article 4b of the revised proposal features the most controversial provision and the reason why progress is only very slowly being made: namely, the so-called equivalent efficacy or flexibility clause. Following this clause, Member States which have enacted measures to ensure a more balanced representation of men and women on corporate boards would be authorised to suspend application of the procedural requirements, given that those measures are equally effective or have attained progress coming close to the aims set out in the directive.

‘With a view to combining flexibility with maximum legal certainty,’ Article 4b exemplifies three scenarios deemed by law to guarantee equal effectiveness, leaving the door open at the same time to analogous situations existing in the Member States. In this respect, the last version of the proposal allows disconnection as soon as ‘members of the under-represented sex hold at least 25% of the total number of all non-executive director positions or 20% of the total number of all director positions and the level of representation has increased by at least 7.5 percentage points over a recent five-year period.’ Beyond 2020, more stringent conditions will have to be complied with if the Member State wishes to maintain the suspension.

Considering the documents issued by the Working Parties of the Council, the flexibility clause has created a major point of contention between delegations. While agreement broadly exists on the main lines of the proposal, Member States are divided between those pushing for the flexibility clause to be enhanced and those warning against any further softening of the text. The recent progress report consequently acknowledges that ‘[s]ome further fine-tuning of the flexibility clause is likely to be required before an agreement can be reached on the Directive.’

Comments

The proposal should be welcomed as a significant step towards tackling gender imbalance within corporate governance in the European Union. Substantive measures in this respect have been long overdue and much awaited; the question thus remaining is if and when consensus within the Council will be reached. The Luxembourg Presidency in its outlook overview of priority dossiers  refers to the proposal on gender balance, recognising that it ‘[has] been blocked in the Council for a considerable time.’

From the standpoint of Discrimination law, it is regrettable that the rationale of the directive appears to be predominantly economically driven, at the expense of considerations of parity, diversity, legitimacy and democracy. Instead of upholding the claim that gender balance in corporate boards will yield microeconomic growth—an assertion which, on the other hand, risks perpetuating gender stereotypes, as it is based on the assumption that women and men act differently in business contexts—, the proposal should rather build upon dependency with a view to eradicating and correcting structural male dominance in decision-making.

De lege ferenda, it would perhaps be advisable to abandon the understanding of quotas purely on the basis of sex and transitioning to a gender terminology that accommodates at the same time additional genders or gender identities. Following this suggestion, measures could be envisaged that give a soft preference in a similar manner not only to female candidates but to candidates of genders or gender identities which differ from that of over-represented male candidates.

As regards the sanctioning regime, more meaningful enforcement measures could be conceived of within the limits of proportionality that do not leave failure to comply with the numerical targets unpunished, e.g. in the form of fiscal incentives or of penalties within the area of public procurement.

One of the striking points of the proposal is undoubtedly that of the flexibility clause. Despite its stated purpose of allowing more proactive Member States to develop their own equality programmes without conflicting with the substance of the proposal; this possibility permits, in practice, a large derogation by means of national tailor-made gender diversity strategies. Whereas due regard must be had to subsidiarity, it should be noted that the envisaged thresholds for equivalent efficacy are deceptively low as a consequence of the watering down of the proposal during the Council deliberations.

To conclude on a pragmatic note, it can be said that the current prospects of more robust European Union legislation tackling gender imbalance within corporate governance are bleak: the still ongoing difficulties within the Council to reach an agreement foreshadow, if anything, an even more compromised version of the text. For the time being, in the European Union it is more around twenty percent Venus, eighty percent Mars. Surely an imbalance of planetary dimensions.

Barnard & Peers: chapter 20

Photo credit: www.livemint.com

Does EU law prohibit condoning discrimination against breastfeeding women?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party (UKIP) stated that while he had no personal objection to women breastfeeding in public, it should be for businesses to decide on their own rules. Perhaps they could ask breastfeeding women to “sit in a corner”. In any event, it shouldn’t be hard to breastfeed a baby in a way that wasn’t “openly ostentatious”.

He was referring to a case in which a restaurant asked a woman to place a napkin over her baby. Another café has recently suggested that women should breastfeed in the disabled toilets.

There’s an interesting legal dimension to this issue. First of all, is it legal to discriminate against breastfeeding women? Secondly, to what extent is it illegal even to encourage such discrimination, or at least to condone it? The latter is a fair description of Farage’s comments.

Discrimination against breastfeeding women  

As some press articles have pointed out, the Equality Act 2010 makes it illegal in the UK to discriminate against breastfeeding women in employment or public places like restaurants, subject to very limited exceptions. There’s an excellent summary of the law here, on the Maternity Action website. So businesses can’t make up their own rules on this issue, as Farage seemed to assume – although perhaps his point was that the law ought to change.

What about EU law? There are separate Directives concerning sex discrimination in employment, and sex discrimination as regards goods and services offered to the public, which would apply to restaurants. Neither of them explicitly bans discrimination as regards breastfeeding. But the Court of Justice of the European Union (CJEU) has long ruled that discrimination against pregnant women is discrimination on grounds of sex. Its reasoning is that even though not all women are, have been, or will become pregnant, only women can be pregnant, and so discrimination on grounds of pregnancy is therefore direct sex discrimination. Logically this reasoning applies by analogy to breastfeeding: even though not all women will become mothers, or breastfeed if they do, only women can breastfeed.

If this is correct, there’s a ban on discrimination against breastfeeding mothers right across the EU, and the UK’s law simply reflects its EU obligations. Of course, leaving the EU (UKIP’s key policy) would mean that the UK no longer had such obligations.

Endorsing or condoning discrimination

Of course, Nigel Farage didn’t himself insist that a breastfeeding mother had to cover herself with a napkin in a restaurant, or actually make a new mum sit in the corner. He merely said that he could accept it if businesses chose to do this – even though (which he didn’t mention) this would be illegal.

There’s an interesting line of case law of the CJEU on the circumstances in which publicly supporting discrimination gives rise to legal liability. First of all, in AGM COS.MET, a Finnish government official disparaged the safety of Italian lifts. Sales of the lifts promptly plummeted (as it were), and the manufacturer sued the Finnish government for damages. The CJEU ruled that the State would be liable for its official’s comments if, on the facts of the case, those comments were attributable to the State. One factor to consider was whether the State distanced itself from those comments. On this point, it’s interesting to note that David Cameron’s office immediately denounced Farage’s remarks yesterday. This is probably not an attempt to reduce the government’s legal liability, but rather a bid to hoover up the female votes that Farage apparently doesn’t really want that much. But the effect is the same.

So can there be liability for discriminatory comments by private individuals? In Feryn, the CJEU said that a business could be liable for stating publicly that it would not hire ethnic minorities, due to objections by its customers. That’s broadly similar to Farage’s point that other restaurant customers might be ‘embarrassed’ by ‘ostentatious’ breastfeeding. Perhaps it would distract their attention too much from gazing at Page 3 of The Sun.

Later on, in the Associatie Accept case, the CJEU ruled that a homophobic rant by the part-owner of a football club could give rise to liability for that club, if there was a perception that he had a significant influence on that club's policies. While Nigel Farage certainly seems to influence government policy generally, in this particular case David Cameron’s response to Farage's comments yesterday would rule that out.

So as things stand, Nigel Farage’s comments would not give rise to personal or state liability – although lawsuits against the restaurants that discriminate against breastfeeding women would be a different matter. And things would also surely change if Farage were the Deputy Prime Minister – although in that case, the UK’s EU membership and the Equality Act would likely not last very long in any event.


Cartoon: Los Angeles Times

Barnard & Peers: chapter 20