Uk Consultation on the European Commission Proposal

DISCRIMINATION LAW ASSOCIATION

RESPONSE TO

UK CONSULTATION ON THE EUROPEAN COMMISSION PROPOSAL

FOR AN EQUAL TREATMENT DIRECTIVE

The Discrimination Law Association (“DLA”) is a membership organisation and a registered charity established to promote good community relations by the advancement of education in the field of anti-discrimination law and practice. It achieves this by, among other things, the promotion and dissemination of advice and information; the development and co-ordination of contacts with discrimination law practitioners and similar people and organisations in the UK and internationally. The DLA is concerned with achieving an understanding of the needs of victims of discrimination amongst lawyers, law makers and others and of the necessity for the complainant-centred approach to anti-discrimination law and practice. With this in mind the DLA seeks to secure improvements in discrimination law and practice in the United Kingdom, Europe and at an international level.

DLA has a varied membership of approximately 300. It brings together a broad range of specialized discrimination law practitioners, lawyers, legal and advice workers, policy experts, academics and concerned individuals, all united around a commitment to improving equality law, practice, education and advice for those who face discrimination.

The DLA welcomes the opportunity to respond to this consultation and thereby to inform the approach the UK government will take to the proposed EC Directive. The DLA has been concerned and engaged in the discussions regarding the proposal for an EC Directive providing protection against discrimination outside of employment on grounds of religion or belief, disability, age or sexual orientation since the beginning of 2008. We made a submission to the European Commission in January 2008 in which we urged the introduction of a single directive covering these four grounds, with a view to securing consistency in the scope of protection at EU and national level and to avoid hierarchy between different Article 13 TEC grounds.

In this consultation document, the government rightly draws attention to the provisions of existing anti-discrimination legislation in Great Britain and Northern Ireland as well as the provisions of the Equality Bill currently before Parliament, which will apply in Great Britain. While it is, of course, to be expected that the perspective of the UK government to proposed EC legislation will reflect relevant domestic legislation, the DLA is concerned that the overall approach presented in the consultation document is that the proposed Directive should go no further in providing protections against discrimination and harassment on grounds of religion or belief, disability, age and sexual orientation than the protections contained in existing UK legislation or the pending Equality Bill. This approach appears to ignore the fact that it was as a result of EC legislation that significant improvements have been made to UK anti-discrimination legislation, that is, that EC law led, rather than followed, domestic law to introduce a wider definition of indirect discrimination, a separate unlawful act of harassment related to protected grounds and, importantly, the shift of the burden of proof in discrimination cases. Further, decisions of the European Court of Justice have resulted in new and strengthened protections under UK domestic law.

Therefore, in responding to the questions within the consultation document, the DLA has tried to consider the implications of provisions within the proposed Directive as minimum standards that would apply across the EU as well as minimum standards for the UK.

Article 1: Purpose

One of the issues raised under Article 1 and in other parts of the consultation document is the proposal to prohibit age discrimination beyond employment and vocational training and the UK government’s position that this should exclude people under age 18. The DLA strongly disagrees with this position for several reasons:

• There is good evidence of age discrimination affecting children and young people in the UK that cannot be justified as suitable treatment for their age and stage of development. This includes discrimination in access to health care and especially mental health care – gaps in provision for 16 – 17 year olds; children refused access to museums, shops, and public spaces; age restrictions on access to and membership of local authority sports facilities; higher rates of car insurance; discrimination in access to basic financial services, imposition of curfew orders.
• To apply an age 18 barrier for protection is itself age discrimination; the fact that there may be a number of areas in which differential treatment of children or young people of different ages can be justified in our view is not sufficient reason to exclude protection against unjustifiable age discrimination.
• To exclude people under age 18 from protection against age discrimination cuts across the broad aim of making EC law clear and consistent across all grounds; consultations have indicated that this would be to the benefit of providers of goods and services, housing and social benefits across the EU. To exclude protection for people under 18 would create a new gap and would introduces a new hierarchy. Why should a person protected against discrimination on all other Article 13 groundsfrom birth only be entitled to seek redress for age discrimination where the relevant act occurs on or after her 18th birthday?
• Excluding protection against age discrimination for under 18s could introduce new areas of uncertainty. For example, what would be the position of a person age 18 who because he looks like he is only 16 is excluded from a club? Or what would be the position of a group some of whom are over 18 and some are under 18 when they are all prevented from entering a club because some were under 18?

We set out below DLA responses to the numbered questions in the consultation document.

Article 2: Concept of discrimination

1. What recent evidence do you have of harassment that would be prohibited by virtue of the Directive that would not currently be prohibited by UK discrimination law on the grounds of a) religion or belief and b) sexual orientation?

To challenge harassment on grounds of religion or belief or sexual orientation outside the field of employment or further or higher education relying on current UK discrimination law would involve a claim of direct discrimination and would require the identification of a suitable actual or hypothetical comparator who had not or would not be treated in the same way. We set out some examples which reflect realistic situations in which it would be very difficult to identify a comparator.

• A Muslim man is who travels on the same bus route to and from his work complains of anti-Muslim remarks by several of the bus drivers. He receives a letter from the management saying that they regularly receive complaints about all sorts of remarks by their staff, for example alleging that drivers make racist or sexist remarks; however their greater concern is to protect their drivers from the abuse they receive from members of the public. As the company has not taken action when they have received other complaints from passengers they are not proposing to investigate his complaint.

• Two gay men in a pub holding hands receive abuse from other customers, they complain to the landlord who does nothing, so they are forced to leave. The landlord establishes that he never stops customer abuse (whatever the sexual orientation of customers – although in reality such abuse never happens to straights).

• B, who is a lesbian, goes with her straight friend C to C’s ‘exclusive’ health club. C is abused by the staff for ‘lowering the tone’ by bringing a lesbian to the club. B finds this very upsetting; while the abuse was directed at her straight friend she feels deeply humiliated and insulted. Who would be a relevant comparator if B wanted to bring a claim?

• G is a gay secondary school pupil Two other boys, H and J, constantly bully and harass G using words and gestures G perceives as relating to his sexual orientation. G’s schoolwork goes down and he begins to miss school. The headteacher threatens disciplinary action if his attendance does not improve. When he tries to explain that he stays away to avoid homophobic bullying, the headteacher replies “Grow up. Most boys have to learn to live with bullying, it is part of growing up.”

1. Do you support the proposal in the Directive to extend protection against harassment on the grounds of a) religion or belief and b) sexual orientation?

Yes. We fully support the proposal that the Directive should include protection against harassment on all four grounds covered by the Directive. This would create consistency across all Article 13 grounds in employment and non-employment areas when the proposed Directive is read alongside the Race Equality Directive and the Recast Equal Treatment Directive and the Gender Goods and Services Directive.

Even if, as the consultation document suggests, some instances of harassment on grounds of religion or belief or sexual orientation could be challenged as direct discrimination under current UK discrimination law, we do not agree that people subjected to harassment on these two grounds should be confronted with a more difficult case to establish than persons subjected to harassment on other Article 13 grounds. We also do not agree that EC or UK law should, for harassment on grounds of religion or belief or sexual orientation, have different rules depending on whether harassment occurs in the course of employment/vocational training(further and higher education) or in other circumstances including in the course of other forms of education, in a restaurant or hotel, as a tenant, as a benefit claimant, or a hospital patient.

1. Do you have concerns about the proposal?

No. We appreciate the concerns that had been expressed in the UK in the past that to prohibit harassment on grounds of religion or belief or sexual orientation outside the field of employment could conflict with rights of freedom of expression or freedom of thought, conscience and religion under the European Convention on Human Rights (ECHR). The proposed Directive confirms that the EU Treaty is based on human rights principles that the EU respects fundamental rights as guaranteed by the ECHR and that this Directive respects these fundamental rights as recognised by the Charter of Fundamental Rights of the EU (including rights to freedom of expression and freedom of thought, conscience and religion). We would expect any national court or the ECJ, in interpreting any provision of the proposed Directive including in relation to harassment, to do so consistent with the ECHR and the EU Charter,carefully balancing rights to freedom or expression or freedom of religion with rights of an individual not to have their dignity violated and being forced to endure an intimidating, hostile, degrading, humiliating or offensive environment.Therefore we do not share these concerns.

Article 3: Scope

1. What different treatment on grounds of age is justifiable in the provision of services generally and financial services in particular?
2. How do you think the Directive could best reflect the intention to eliminate unjustifiable age-based discrimination in services generally and financial services in particular?

Article 2(6) of the proposed Directive, permits Member States to provide that “differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are justified by a legitimate aim, and if the means of achieving that aim are appropriate and necessary.” This repeats the language of Article 6(1) of the Framework Employment Directive which has recently been considered by the ECJ in the Heyday case[1]. The ECJ ruled that it was not necessary for a provision in national law giving effect to Article 6(1) to contain a precise list of the aims justifying derogation from the principle prohibiting discrimination on grounds of age. “However, Article 6(1) offers the option to derogate from that principle only in respect of measures justified by legitimate social policy objectives….” (our emphasis)

The DLA submits that the same principle must apply where the derogation from the principle prohibiting age discrimination applies outside the field of employment. Thus as a first stage, there should be clear social policy objectives, consistent with the principle of equal treatment – the legitimate aim -- to justify any difference of treatment; the actual difference of treatment must then meet the dual test of is it an appropriate and necessary means of achieving that aim.

Differences of treatment on grounds of age in provision of services under current laws, policies and practices in Great Britain, which the DLA considers may be appropriate and necessary means of achieving legitimate social policy objectives (although not necessarily endorsing in every case the current age limits) include:

• voting age, driving age, age of consent, age of criminal responsibility, age to purchase cigarettes and alcohol, age to engage in gambling, age to be entitled to receive a state pension;
• ages for compulsory school attendance;
• age as a qualifying condition for free prescriptions, free eye tests;
• concessions based on age: free or discounted travel, reduced fees for entry to museums, sports and leisure centres, continuing education;
• NHS targeted disease prevention: vaccination programmes.

The DLA submits that Article 2(6) should be amended to allow Member States to permit disabled people to be treated more favourably; this would be consistent with a the social policy objectivesset out in the UN Convention on the Rights of People with Disabilities.

The DLA does not support the exception in the proposed Directive (Article 2(7) for financial services in its current form, which would allow current discriminatory practices in banking and insurance that disadvantage young people, older people and disabled people to continue with little change. Such practices are based on often-untested stereotypes.

• As a minimum, Article 2(7) should be amended to include the same requirements for transparency, review and oversight as are contained in the Gender Goods and Services Directive (Article 5(2)). This would allow Member States to permit differences in treatment on grounds of age or disability only if they require providers of financial services to publish up-to-date actuarial or statistical data relevant to each ‘risk’ area, for example driving, travel, mortgages relating to financial services and each age group or disability. For example, for travel by EU residents to any EU Member State, any health risks will be covered by regulations on the coordination of health systems, so that the main insurance risks will be lost or damaged suitcases and repatriation; we are not persuaded that these involve any significant differential age risks.

• The DLA agrees with the recommendation of the European Economic and Social Committee[2] that after a period of time Member States “should be required to review the evidence for differential treatment and to consider gradual sharing of risks and equalisation of premiums.” We note that sharing of risks or costs has been accepted for many years in the context of public services such as education or health or highway maintenance where there is no profit motive or competition for customers.

1. Given the limits of Community competence, and subject to the proposals being clarified in relation to housing, can you provide examples of the practical effects of the Directive in the areas of health care, education and housing.
2. Do you have evidence of any harmful age discrimination in the provision of social housing?

The DLA is concerned that the UK government, in this consultation document, has not presented a full and accurate explanation of the competence of the EC and of Member Sates in areas such as education, health and housing. This raises the possibility that consultation responses from some organisations or individuals may be based on an incomplete appreciation of the principle of subsidiarity.

For example, the document refers to Article 149 of the Treaty which recognises the responsibility of the Member States for the content of teaching

and the organisation of education systems and excludes from EC action any harmonisation of the laws and regulations of the Member States. As vocational training is not part of this Directive, the consultation document does not refer to Article 150 of the Treaty that requires the EC to develop a vocational training policy to support and supplement action of the Member States, recognising, in words identical to Article 149 “the responsibility of the Member States for the content and organisation of vocational training” and similarly excludes from EC action any harmonisation of the laws and regulations of the Member States. The fact that Member States have primary responsibility for vocational training has not prevented inclusion and implementation of vocational training as an area to which EC anti-discrimination directives apply, limited only by the preamble “Within the limits of competence conferred on the Community…” which is also the preamble to the definition of the scope of the proposed directive in article 3(1).

Similarly the document selectively refers to Article 152(5) of the Treaty that requires Community action to “fully respect responsibilities of the

Member States for the organisation and delivery of health services and medical care” while omitting reference to Article 152(1) that gives the EC competence to take action to complement measures by Member States and to support actions of Member States.

The scope of the proposed directive includes under article 3(1)(d) “access to supply of goods and other services which are available to the public, including housing”. This is qualified by the statement following 3(1)(d) that limits the application to individuals performing a professional or commercial activity.

Article 50 of the Treaty defines “services”:

“Services shall be considered to be ‘services’ within the meaning of this Treaty where they arenormally provided for remuneration….”

Given the preamble under article 3(1) of the directive bring the scope within the limits of EC competence, we are satisfied that housing is properly within the scope of the proposed EC directive, save where housing is wholly non-commercial, for example a person allowing a close friend or family member to live in part of their home. Whether a landlord makes a profit from providing residential accommodation or whether for any reason whatsoever s/he decides to charge a non-commercial rent is not a decisive factor; the only question is whether as a service it is a commercial activity which is normally provided for remuneration.

Given the importance of equal access to education, health care andsuitable housing to the economic and social well-being of all people within the EU and given the evidence of discrimination in these fields in all parts of the EU, the DLA fully endorses Recital 30 of the proposed Directive which, in confirming competence based on the need for EU-wide legislation in these areas,refers to Article 5 of the Treaty:[3]