1. Introduction
2. Draft Directive on establishing a general framework for equal treatment in employment and occupation
3. Draft action programme
4. The Non-Discrimination Package
5. Specific issues
6. Conclusion
1. Introduction
The European Blind Union (EBU) welcomes the opportunity to present its views on the European Commission's proposals on combating discrimination. The draft Directive establishing a general framework for equal treatment in employment and occupation is of particular importance to the EBU and blind and partially sighted people. It is, therefore, on this document our comments are concentrated. However, we also provide some comments on the proposed action plan.
Our comments are presented in four sections - the employment directive ; the Action Programme ; the non-discrimination package ; and some specific issues.
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2. Draft Directive on establishing a general framework for equal treatment in employment and occupation
2.1
Article 2 - Concept of discrimination
2.1.1
Indirect discrimination
Article 2 of the draft Directive sets out the concept of discrimination as including both direct and indirect discrimination. EBU strongly support this approach.
2.1.2
Reasonable accommodation - Definition
Introducing a definition of "reasonable accommodation" is probably the most important amendment that needs to be made to the draft Directive. EBU would like to see a definition that includes references to access to information, equipment, the workplace and so forth, or using examples of "reasonable accommodation". We would suggest that the reference to "undue hardship" is unnecessary, as "reasonable accommodation" surely presupposes that "undue hardship" will be taken into account. If "undue hardship" remains in the Directive, there will need to be a definition or at the very least a clarification of what it means.
2.1.3
Reasonable accommodation - Scope
Although Article 1 of the draft Directive sets out its purpose as addressing discrimination in the fields of "employment and occupation, promotion, vocational training and employment conditions and membership of certain bodies", the Article on "reasonable accommodation" refers only to employment. This Article must be extended to make clear that it covers all the fields referred to in Article 1.
2.2
Article 4 - Genuine Occupational Qualifications
EBU rejects this approach, as using this as a defence for less favourable treatment is impractical for employers given the wide scope of work activities and employee benefits. Genuine Occupational Qualifications may be applicable with regard to race and gender, but cause huge problems when applied to such a disparate area as disability.
2.3
Article 6 - Positive action
The draft Directive allows member states to maintain or adopt positive action measures. Although this is not a mandatory provision, it does strengthen the argument for positive action. EBU takes the view that all public authorities should have a statutory duty to promote equality of opportunity for disabled people and should prepare statutory action plans for this purpose. The Article should contain a provision for the monitoring of positive action schemes. Positive, or reverse, discrimination should also be allowed for. Although we no longer have disability quotas in some countries, they are still extremely important to many disabled people in other EU member states.
2.4
Article 7 - Minimum requirements
EBU supports the provision in Article 7 to allow member states to introduce or maintain measures or standards against discrimination in employment that are stronger than those laid down in the Directive.
2.5
Article 8 - Defence of Rights
This Article is welcome, as disabled people can face enormous problems in accessing justice. EBU also supports the requirement in this Article for member states to allow "associations, organisations or other legal entities" and not only named individuals to take action under the Directive.
2.6
Article 9 - Burden of proof
EBU strongly supports the provision in the Directive to place the burden of proof on the defendant, rather than the plaintiff. This will clearly make it easier for disabled people to pursue discrimination cases, and should also have an impact on the attitude of employers to "reasonable accommodation".
2.7
Article 10 - Victimisation
Whilst supporting this Article, EBU considers that it should be extended to cover any non-disabled employees who are victimised because they have assisted a disabled employee with a discrimination claim.
2.8
Article 11 - Dissemination of information
Article 11 requires member states to ensure that information about the provisions of the Directive are adequately disseminated in the workplace. This information must be provided in formats other than standard print, to ensure that blind and partially sighted people are not excluded from finding out about their rights under the Directive. Article 11 should specifically refer to the need for dissemination of information in accessible media. EBU would also like to see an amendment to the Recitals of the Directive, to include a Recital stressing the importance of the provision of information in accessible media for print disabled people in the EU.
2.9
Article 12 - Social dialogue
Article 12 of the Directive refers to the promotion of social dialogue as a way of fostering the principle of equal treatment. This Article should also promote civil dialogue and the involvement and consultation of disabled people and their organisations. Whilst EBU welcomes the suggestion that social partners are encouraged to take an active monitoring role, we consider that the Directive should include a responsibility on employers in this respect and a requirement for member states to monitor the implementation of anti-discrimination provisions and to report at the EU level on a regular basis.
2.10
Impact Assessment Form
It is not clear whether the Impact Assessment Form for SMEs attached to the Directive aims to allow member states to create a threshold with regard to reasonable accommodation and therefore to exempt firms with fewer than a certain number of employees. The size of a firm would, of course, be taken into account in assessing "reasonable accommodation" and therefore EBU feels strongly that it is unnecessary for the Directive to allow for automatic thresholds to be established.
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3. Draft action programme
The proposed action plan will provide a useful tool to complement national and other European actions. However, it will be limited by the fact that it does not support local or national initiatives. EBU also regrets that the action programme does not provide for core funding for European disability organisations, other than the European Disability Forum. The EBU is the only pan-European organisation to represent the specific interests of blind and partially sighted people at the EU level. One pan-disability umbrella organisation cannot be expected to represent all the disparate and sometimes conflicting interests of the different disability sectors. The EBU also has a wealth of expertise on visual impairment that could not be matched by one pan-disability umbrella body. We are also concerned that the general approach of the programme will attempt to address all the grounds of discrimination mentioned in Article 13, which will mean that there will be competition between the different sectors and could result in a severely limited number of disability projects. We would prefer the programme to ring-fence funding for each of the different "grounds of discrimination" and in the longer term would like to see an action programme dealing specifically with discrimination against disabled people.
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4. The Non-Discrimination Package
4.1
Disability-specific Directive
Whilst EBU is delighted that the Commission has proposed legislation to take action on discrimination in the EU, we are disappointed that disability discrimination is being addressed only with regard to employment. EBU would highlight the need for a horizontal Directive combating discrimination against disabled people in all areas within European Union competencies. The Directive, instead of speaking of disabled and non-disabled persons, should distinguish and include youth, elderly, women and men (age and gender). We hope that the Commission will propose such a Directive in 2003.
4.2
IGC - Article 13
During the forthcoming Inter-Governmental Conference negotiations on the extension of Qualified Majority Voting, EBU urges member states to remove the need for unanimity from Article 13 of the Consolidated Treaty, as this is an unnecessary hurdle to achieving adequate anti-discrimination legislation in the EU.
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5. Specific issues
5.1 There is no doubt that action at Community level will bring benefits that are not being achieved at national level. Employment policy is currently at the top of the EU's agenda and therefore it is essential that this policy takes into account discrimination as one of the most serious barriers in the labour market.
5.2 EBU would like to see EU legislation based on best practice in the EU. We also believe that Article 13 should have direct effect, so that people suffering discrimination are able to take cases to the European Court of Justice. We support the provision in the Directive to allow member states to maintain or adopt stronger legislation.
5.3 EBU was disappointed that the Commission did not include a disability-specific Directive in its anti-discrimination package. It is clear that discrimination against disabled people needs to be tackled in the EU in every area. We welcome the Commission's proposal to adopt a disability-specific Directive in 2003. With regard to the employment Directive, it must be clarified that reasonable accommodation refers to all the fields covered by the Directive.
5.4 National regulations need to be amended to take on board the shift in the burden of proof, the explicit incorporation of indirect discrimination, the strengthening of positive action and potentially the removal of set thresholds.
5.5 The employment Directive is in need of substantial clarification with regard to "reasonable accommodation" and "undue hardship" (if this latter term is not omitted).
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6. Conclusion
In conclusion, EBU welcomes the anti-discrimination package, particularly the draft Directive on employment. However, we hope to see the adoption of a disability-specific Directive in the near future, so that all aspects of discrimination against disabled people in the EU can be addressed.
Contact :
Rodolfo Cattani
Chair, EBU Commission for Liaising with the EU
c/o Unione Italiana Ciechi
Via Borgognona 38, 00187 Rome (Italy)
Tel : +39 06 699 88388 or 88375
Fax : +39 06 69988328
E-mail :
inter@uiciechi.it
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