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Monday, June 30, 2008

Will EU law shoot down Harman's plans on discrimination?

We did promise a post on this.

To cut a long story short there will be no problem in terms of positive discrimination in employment. Article 141(4) of the TEC allows this:

With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

This was inserted into the Amsterdam Treaty in 1997 after the 1995 Kalanke case, in which the ECJ had shot down a regional German "positive discrimination" law.

Article 141(4) is not a complete catch all. "Positive discrimination" rules still have to be based on evidence of de facto inequalities and have to be based on transparent and objective criteria.

But the UK Government's plans will (probably) avoid falling into that trap.

If there is going to be a problem it will be on access to services - e.g. are insurance and healthcare companies allowed to practice positive discrimination? Can she force them not to discriminate on age grounds if there are rational reasons to do so?

The Association of British Insurers certainly don't like the proposal on age discrimination.

“Legislation, no matter how well-intentioned, could have the unintended negative consequence of forcing some insurers to withdraw certain products altogether, reducing competition and availability, and pushing up prices for all age groups.”

Could the ABI say that anti-age-discrimination rules were a restriction of their freedom of establishment under EU law? It certainly seems odd that a French company could offer a certain rate, but one based in the UK could not.

A few years ago the EU had to bin its plans to ban gender discrimination in insurance.

When they came back with a new version (the Gender Directive - which came into force in April) it allows insurers to discriminate based on an objective set of criteria based on data published in official tables. But no such tables exist for age discrimination, at least not yet.

Even if the UK were to adopt such an "objective" approach in the UK legislation, it could be challenged as it has not been agreed under EU law.

The whole issue of positive discrimination and anti-discrimination is much more messy in Eu law as soon as you move away from pay and conditions and in to social security and the provision of services. In the early 1980s the EU tried and failed to agree a directive on positive discrimination.

It seems to us that the UK could run into some problems with the new equalities legislation, unless EU law in this area is changed. So it will be interesting to have a close read of the Commission's proposal on Wednesday.

On the other hand we could be completely wrong. EU law experts (we know you are out there) what do you think?

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